The Top 5 Things You Should Do When Stopped for DWI

December 29, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Texas DWI arrests are like snowflakes in each and every case I’ve seen is unique.  Different police officers think differently from one another and there is no one-right way to “get out” of a DWI arrest.  Being cooperative and giving detailed explanations may work with some officers yet others will actually turn your helpful nature against you.  Having seen hundreds of cases,  I can tell you what normally helps and what usually makes things worse.

Here are the top 5 things you should do when being stopped or investigated for DWI.

5.  Be Friendly and Courteous to the Officer (Remember, You’re On Camera!)

A DWI trial is a rare case where the juror actually identifies with the defendant as much or more than the officer.  Jurors, therefore, subconsciously wonder how they would act towards the police in your situation.  The vast majority of jurors see themselves as being polite, friendly and cooperate regardless of how difficult the officer is being or what he asks the person to do.  If you are a jerk or are mean to the officer, not only are you almost certain to be arrested, but the jury will dislike you as well.

4.  Know Your Rights and Exercise them Wisely

You have the right to remain silent and you also have a right to refuse any of the field sobriety tests offered in the field. If you remain silent immediately after being pulled over, though, you’re daring the police officer to arrest you (and I promise he or she will find a reason).  If you refuse the field sobriety tests, your refusal of the tests is not considered “testimonial” in nature and therefore the jury will know you refused the tests.  Again, you run the risk of turning yourself into the bad guy before the jury.

If you’ve been arrested and mirandized then you should absolutely exercise your right to remain silent.  They think you’re guilty and they’ll spin anything you say into confessions of guilt.  Also remember you’re probably being taped the entire time. Don’t initiate conversations with the police in the station or in the police car.

3.  If You Do The Standardized Field Sobriety Tests

There are three field sobriety tests in a standard battery created by the National Highway Traffic Safety Administration (“NHTSA”).  The three tests are the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one-leg stand.  Rather than geek-out on the details of the tests and studies which validate tests which are conducted and graded correctly by the police, I’ll tell you a handful of truths about the tests.

First is if you get arrested — you can be positive the officer will say you failed the tests no matter how well you think you may have done.  This is because officers — even well meaning ones — are biased graders.  If they think you’re drunk when they first pull you over, you can be sure they’ll nit-pick your performance and find just enough fault to justify your arrest.  It’s not dishonesty, it’s being human.

Second — and most importantly — jurors see the field sobriety tests as potentially unfair.  Again, they tend to see themselves in your shoes on the side of the road.  They know it’s an intimidating environment and they also wonder if they could do the tests themselves.  The HGN is a neurological eye test performed and explained by a person who directs traffic when needed… jurors have a hard time understanding or believing HGN.  As for the other two tests, jurors understand knee, back or weight issues make the tests hard… let alone doing the test with whizzing cars, flashing lights, or gusty winds acting as nuisances.

If you take the tests — you should be sure to tell the officer any medical or physical issues you might have which could affect the test.  This could be knee issues, head injuries, back problems, broken bones etc. etc. etc…  You can be assured the officer will let your medical problems go in one ear and out the other — but the jury will get to hear the problem and they will listen.

2.  Be Skeptical of Representations the Police Officer Makes

My experience is police tend to make up their minds very quickly in DWI arrests then focus on substantiating their conclusion.  Police, though, will never admit this and are trained to manipulate you into cooperating by taking additional test and answering additional questions.

Listen to police with skepticism.  Though they could be sincere in wanting to cut you loose or let you call a friend — it’s just as likely they’ve got their fingers crossed behind their back.

“I just want to see if you’re okay to drive,” sounds to the listener like “I’m thinking of letting you go if you do okay on the test” but it isn’t.  Also statements like “honesty goes a long way with me” or “I can’t help you if you don’t tell me whats going on” sound like the officers decision could go either way… but it’s possible the officer has already called the tow-truck.

1.  Don’t Take the Breath Test

Texas Transportation Code Section 724.013 gives a person a right to refuse the breath test.  The police may try to pursue a warrant for your blood, but this isn’t a certainty and they may not do the application properly.

The Intoxylizer 5000 is the current machine used by the State of Texas.  Though I won’t geek out on it in today’s blog, I can tell you the concern of most experts I’ve worked with is it is simply too general.  A person who blows a 0.12 might actually be as low as a 0.05 at the time of driving or as high as a 0.17.

Additionally, jurors tend to understand refusing the breath test even though they might submit themselves.  They’ve head enough horror stories and they honestly don’t know how much alcohol consumption it takes to get them to a 0.08 either.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact an attorney directly.

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Top 5 Tactics Prosecutors Use to Convict People at Trial

December 29, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s obviously important to know your adversary, your adversaries tendencies, and how your adversary thinks.  Having been a prosecutor, it’s easy for me to place myself in their shoes to analyze how I’d have prosecuted the case against my client were the roles reversed.  Today I’ll discuss the Top 5 most common tactics we see in criminal prosecution I see on a regular basis.

Criminal prosecution is a difficult and noble profession.  The vast majority of prosecutors are honest, hard working and consciences.  The rules are (in some ways) much more restrictive against prosecutors who have extremely high expectations of honesty and integrity whereas a defense lawyer usually has an immediate uphill climb with juries.  While creativity is heralded in criminal defense — it is frowned upon in criminal prosecution (often unfairly).

Though I can easily nit-pick prosecutorial tactics and paint them as unfair… probably none of the techniques I describe below were created or have evolved from malicious intent, rather they were created by advocates who may not fully appreciate the harmful effect some of their tactics may have.

With that out of the way, let’s review the top 5 tactics prosecutors use in trial:

5.  “Liar Liar Pants on Fire”

Proffering a defense in a criminal trial is extremely difficult.  If you think about it, it’s almost impossible to do without a prosecutor being able to accuse your client, his friends, family or anyone testifying on their behalf of being a liar.  It’s really a built-in, automatic rebuttal when someone takes the stand to say “my friend wasn’t drunk we he left the bar” in a DWI trial, or “I was with my husband the time you say he was sexually assaulting the accuser,” or  “my wife bought that scarf three weeks ago from your store… she wasn’t shoplifting.”

What many jurors don’t realize is this built-in tactic is the exact reason we have the right to remain silent.

4.  Spinning a Lack of Evidence, Neutral Evidence, or Evidence of Innocence into Evidence of Guilt For the Jury.

One of the more frustrating techniques I come upon is where a prosecutor infers evidence which obviously points to innocence actually points to guilt.

A common example in DWI cases is where the person looks good on the video… prosecutors frequently argue this is evidence the person has a high tolerance for alcohol abuse.  It’s possible in some cases this argument may be true.  Then again, what they’re really saying the accused person is just guilt regardless of the evidence.  If they look drunk — they’re drunk and if they look sober — they’re drunk.

What about a situation where there are no witnesses such as a mugging in an alley except the accuser?  With little or no corroborating evidence, a prosecutor might argue – it is because of Defendant’s skill at being a good criminal he was able to commit this crime and not leave a trace.

In cases with medical evidence such as sexual assaults — where a forensic exam shows no trauma — prosecutors are very quick to point out this does not exonerate the accused.  It takes positive evidence for the accused and turns it into a “tie” or inconclusive.

Spinning evidence of innocence into evidence of guilt is a recipe for wrongful convictions.  Read the facts of cases from inmates who get exonerated after decades and you’ll see a continual pattern of virtually all evidence being subjective conjecture or horribly flawed eyewitness testimony.  No evidence means no evidence.

What is more upsetting about this tactic is it is really prohibited by the Texas Rules of Criminal Procedure Rule 2.03 (b) which does not allow any officer of the court to “impair the presumption of innocence.”  When evidence of innocence is being spun into evidence of guilt — I’d say that provision is being broken.

3.  Feigned Neutrality 

Prosecutors are taught to cover concepts such as the presumption of innocence, the defendant’s right not to testify, and the burden of proof being very high in their arguments and jury selection presentations.  The cursory discussion has the effect of making them seem even-handed to the jurors.

Like a politician who makes a broad statement he’s for one thing… then promptly does another, a prosecutor talks about the defendant’s important rights briefly and then pays them lip service for the rest of the trial.

Experience has taught me brushing over a defendant’s constitutional rights without any context or explanation is a sure way to have a jury ignore them.

Further, prosecutors are quick to point out they have a legal duty to see justice is done and not pursue convictions.  The problem is this doesn’t exactly square with an adversarial system nor does it adequately account for the human tendency to be competitive.

Many prosecutors have never done any type of work as attorneys except to prosecute.  They only listen to the police version of events.  They’ve never had a parent, spouse, or loved of someone accused cry in their office that all of their rights are being violated.  That dynamic can create an “echo chamber” where they trick themselves into thinking everyone is guilty.

While prosecutors have a duty to pursue justice and not convictions — many simply don’t think anyone arrested is innocent.  The mindset police never arrest an innocent person makes the duty pursue justice very hollow.

2.  Shifting the Burden to the Defendant

It’s virtually impossible for a Defendant to prove they’re innocent of an accusation.  Think of how impossible it would be to prove you’re innocent of making a bad lane change if you were accused of it.  You’d have no video evidence or other documentary evidence supporting your case at all.  You’d only have your word — or the word of a passenger in your car.  That defense is a loser (see #5 above, Liar Liar…).

Prosecutors routinely shift the burden, though, in very tacit ways.  One common method is during jury selection prosecutors will explain Defendant has a right to discovery under the Texas Penal Code and the prosecutor has no such right.  Another is the Defendant has equal subpoena power.

Both statements are true and leave an impression of rules that are even or even turn the district attorney’s office into being victims of an unfair process.

These impressions are highly misleading, however.  First — the accused gets information because (as explained above), the prosecution is charged with proving an affirmative action.  Defendant is not required to prove a negative.  Second, Defendant’s “equal subpoena power” is extremely hollow considering the police and government have virtually unlimited investigatory resources compared with virtually none of the defense.

1.  Lowering the Burden of Proof

This is easily the No. 1 tactic prosecutors use to secure convictions.  Prosecutors are trained to lower the burden on themselves and many of them don’t even appreciate this is what they’re doing.

The burden of proof in a criminal case is “beyond a reasonable doubt.”  This phrase used to be defined for jurors as, “..the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  In 2000, the Texas Court of Criminal Appeals did away with this rule and allowed jurors to define it how they chose fit.

An extremely common example used by prosecutors — especially in DWI cases — is a likening the standard of proof beyond a reasonable doubt to an incomplete puzzle where you can still make out the over-all image (usually of a whale or a handgun).  The prosecutor explains there may be missing pieces, the jurors still don’t have a “reasonable doubt” as to the over-all picture.

Jurors find this explanation simple and highly persuasive but the puzzle is problematic.  It’s flawed assumption is proving a crime is a general proposition… instead of a specific proposition with fine details.  It lowers the burden of proof because you could remove over half the pieces to a picture of a giant whale and still be certain it’s a whale.  But what if instead of a puzzle a case is more like a math equation where we’re missing just one or two key numbers?  The remaining pieces of the equation become worthless because we can’t be sure of the outcome or how to get there.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice about any case you should contact an attorney directly.

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What is Heasay?

December 21, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This might be the first time I’ve blogged about a specific rule of evidence, but it’s a fun topic for me and I get asked about it quite a lot by clients so let’s talk about hearsay!

Hearsay is inadmissible in court and is defined by the Texas Rule of Evidence 801(d) as, “A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Hearsay is rooted in the Sixth Amendment to the U.S. Constitution which allows an accused the right of cross-examination of witnesses against them.

Not very clear?  No worries.  They only devote 3 weeks to the topic in law school trying to get you to understand that one sentence.  I’ll keep it simple though hearsay and it’s effects on admissibility are extraordinarily complex and often turn on multiple interdependent factors.

In it’s plainest terms — anytime a witness is on the witness stand and quotes someone (or something) else it’s probably going to be hearsay.  We consider it unfair because it’s impossible to discredit information sources which aren’t even in the courtroom.

Here’s an example:  

Police officer #1 is on the stand and says, “Defendant’s kind-elderly neighbor told me Defendant was the drunkest she ever saw any person in her life that night.”

This is textbook hearsay and here’s what makes this statement extraordinarily unfair to the accused on trial — it’s impossible to cross examine the elderly-neighbor about the statement in front of a judge or jury.  Here’s how that cross examination would go:

Q:  Officer, Do you know if elderly-neighbor might have mistaken Defendant for Defendant’s brother or Defendant’s roomate?

A:  I don’t know.  She told me it was the Defendant.

Q:  Do you know if elderly-neighbor has good vision?

A:  I don’t know.

Q:  Do you know if elderly-neighbor has a history of accusing Defendant of things he didn’t do?

A:  I don’t know.

Q:  Do you know if elderly-neighbor was on medication herself that night which could impair her ability to see things far away?

A:  I don’t know.

See how unfair this is?  Cross examining the officer is like trying to get answers out of sheet-rock.  We don’t know (1) if the officer has embellished the statement from the elderly-neighbor; and (2) we’re entitled to have the jury judge the elderly-neighbor in person while she’s questioned under oath.  The jury can judge her mannerisms, her hesitation in answering questions, and simply her plain answers the officer can’t provide.  It’s the cornerstone of a fair trial.

Here’s a bit more complicated example:

Police officer is on the witness stand and says, “I didn’t see Defendant actually commit the crime, but he did look down when he denied it to me.  I’m very familiar through my training and experience with the study from Nevada which says people who look down when they deny things are always guilty.”

Here the officer is quoting a book or study and not an actual person.  Under the hearsay definition of “statement,” it makes no difference.  It would still be impossible for the defendant to show the jury the “Nevada” study (which doesn’t exist — as far as I know anyway) is nonsense.

Q:  Who wrote the “Nevada” study?

A:  I forgot.  But I know they’re really good and we use it in our academy.  I just know the guys who did the study were right.

Q:  How was the study done?

A:  I don’t remember.

Q:  Hasn’t the study been discredited by virtually every expert in the field?

A:  I don’t know.

Q:  Didn’t your own academy quit using it 10 years ago?

A:  I don’t know.  I just know the “Nevada” study says your client is guilty.

See — we have the same problem as the first example.  A study like this would have to be accepted as authoritative by an expert in the field and then could be relayed to the jury.  Another difference is the Defense would be allowed to discredit the study by showing other inconsistent language from the same study.

Not All Quotes of Outside Sources are Hearsay

To be hearsay, the quote must try to prove “the truth of the matter asserted.”  This is where hearsay discussions get really confusing and complicated.  Normally if hearsay tends to cast the accused in a negative light (the main goal of the vast majority of criminal prosecutions), there’s a good chance it is being used for “the truth of the matter asserted.”

Admissions are Not Hearsay

One key exception to the hearsay rule are known as “admissions by a party opponent.”  This is to say anything a criminal defendant tells someone is admissible in court (absent Miranda violations).  Also any party in a civil lawsuit can be directly quoted as well.

Hearsay Exceptions

Texas Rule of Evidence 803 lists 24 exceptions to the Hearsay rule.  This means even though something might be hearsay — it is still admissible because of it’s inherent trustworthiness.  Examples could be vital statistic records, statements made under high duress, or records kept in the normal course of business.

Common Uses/ Abuses of the Hearsay Rule

Hearsay is a really hot topic in family assault cases as well as child abuse cases.

In family assault cases, it’s very common where the alleged victim spouse does not wish to testify in court.  In these instances it was common for prosecutors to try and prove their case through police who arrived on the scene and took statements from the accuser.  The policy would try to use the “excited utterance” exception for the policy to essentially testify on behalf of the victim.  The U.S. Supreme Court largely put an end to this practice in 2004 in Crawford v. Washington, 541 U.S. 36 (2004) because the Court concluded this practice (in many instances) violated the Sixth Amendment right to confront accusers.

In child abuse cases prosecutors and law enforcement’s main goal at trial is to corroborate a child victim’s outcry of sexual or physical abuse.  It’s common for prosecutors to call persons who the child may have told about the abuse in an attempt to repeat the story and infer the story must be true due to how the child made the outcry.

Texas does have an outcry rule which allows at least one adult originally told the allegations by the child to repeat what would otherwise be hearsay.  It has been a re-occuring struggle for the defense in these cases, however, to prevent the host of trained child advocates whose main function is therapy and treatment of the abuse — from coming and testifying in a very honed and polished manner against the accused though they are often the 3rd, 4th, or 5th person told about the abuse from the child.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly.  Communications sent through this forum are not confidential nor subject to the attorney/ client privilege.

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What “No Refusal” Really Means

December 7, 2012

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

By now we’re all familiar with police press releases telling us a certain weekend is a “no refusal weekend” or that some police agencies have “no refusal policies” in place.  Many people in the general public logically interpret the statement to mean they no longer have the right to refuse a breath or blood test.  Unfortunately the term is a confusing and somewhat misleading tag line and today I’m discussing what it means in layman’s terms.

You Have the Right to Refuse Breath or Blood Testing Under Texas Law

In Texas we have the “implied consent rule” under Texas Transportation Code 724.011(a).  This rule states a person driving in Texas has… by the mere fact of having driven in Texas and being suspected of DWI… already consented to give a breath or blood test if asked.

But, Tex.Trans.C. 724.013 is unambiguous and says in relevant part “…a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”  In addition, Courts have affirmed, “a person retains an absolute right to refuse a test… That refusal must be strictly honored. McCambridge v. State, 712 S.W.2d 499, 504 n.16 (Tex. Crim. App. 1986) and Turpin v. State, 606 S.W.2d 907, 913-14 (Tex. Crim. App. 1980).  Texas Courts have mildly retreated some of the language in the cases above by stating the right to refuse is a “physical right” but not a “legal right.”

Taking Your Blood Even if You Refuse

“No Refusal” refers to the practice of seeking a search warrant from a judge to draw blood against a person’s will where that person has refused a breath or blood test.  Prosecutors argue 724.013 essentially has no meaning and Chapter 18 of the Penal Code allows for the drawing of blood from the human body via search warrants the same way a search warrant could allow police to search a drug-dealer’s house.  Courts have done little thus far to stand in their way.

Police agencies, hospitals, and even some judges have made special efforts to coordinate and streamline the process.  Judges give the agencies private fax numbers receive search warrants (often fill-in-the-blank forms from the officers) via facsimile and sign them.  This warrant is a Court Order the person arrested must submit to the blood testing — even against their will.

Why Citizens Find it Troubling

I’ve been pleasantly surprised by juror’s reactions to involuntary blood draws.  Even pro-police jurors jaws drop during jury selection when the learn police can literally physically assault someone under the color of law to solve what is normally a misdemeanor.  Many jurors wonder if this could happen to their loved ones who might be terrified of needles.  The backlash is enough so many prosecutors will actually quiz potential jurors on their feelings about the topic to possibly eliminate them from the panel if they oppose the practice enough.

Why Defense Lawyers Find it Troubling

First, the practice blurs the lines between law enforcement and the judiciary.  It’s not uncommon or wrong in any way for police to present a search warrant to a neutral-detached magistrate stating under oath probable cause exists to invade a persons rights for the seizure of evidence of a crime.  The mental image we have is from the movies where police are knocking on the Judge’s door at 2 a.m. and apologizing profusely for waking the judge.

But this isn’t what’s happening.  Police are filling out cookie-cutter forms and faxing them to Judges assembly-line style so as to treat citizens protections against unreasonable searches and seizures as a technicality easily over-ridden.  We’re lucky in Collin County not to have any judge who I would remotely characterize as a “rubber-stamp” but knowing the practice growing around the State is certainly worry-some.

Second, a handful of codes and statutes are bent, ignored, or rationalized away by police to effectuate the “no refusal” practice.  Tex.Trans.C. 724.013 prohibiting police from taking a specimen against someone’s will is an obvious one, but almost just as troubling is police are required by law under Tex.Code.Crim.P. 14.06 to take an arrested person before a magistrate “without unnecessary delay” for the purpose of setting bond and reviewing important rights as well as information about the nature of the charges.

Instead of taking an accused under 14.06 without unnecessary delay as police are required to do by law when arresting someone… they contact a magistrate or judge for their own investigation wholly ignoring the accused’s needs (actually rights) to have access to the same magistrate.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you may have you should consult an attorney directly.

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The Top 5 Things You Should Tell Your Lawyer

December 5, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s common for people who’ve never been in trouble before to assume everyone knows (or will know) all the details of their case… this includes their attorney.  Try as I might, I’m just not a psychic.  There aren’t many types of cases I haven’t seen… but each case I handle is truly it’s own snowflake.

Not only is each case it’s own snowflake, but everyone has different motivating factors in decision making.  Often how we treat a case depends more on a collateral issue (such as professional licensing, a medical condition, or immigration status) as it does the actual underlying facts.  It’s too important to assume your attorney understands what truly keeps you up at night about the case.

I hope my client knows I’m not the high school principal, a policeman, or a judge.  Nothing they tell me is going cause me to treat their case anything other than professionally.

As such, today we’re discussing the 5 things you should tell your lawyer:

5.  All the facts about the case you think are important.

I want my clients to feel comfortable.  They can tell me every detail about their case or none of the details because we don’t live in a country where we must prove our own innocence. One of the problems I have in evaluating a case through only a police report, though, is police reports tend read like a soviet history book with white-washed and self-serving facts and conclusions.  Often I find a police report doesn’t support nor contradict my client’s version of events.  This shows the importance of my client’s own account to the over-all evaluation of the case.

4.  If You’ve Been in Trouble Before.

Most people have only 1 or 2 run-ins with the law during their lifetime.  If you’ve been in trouble in the past, it’s important your lawyer know this because it could dramatically effect plea negotiations and even the Prosecutor’s ability to enhance the charges against you.

3.  If You’re Citizenship Status is Anything Less than A Full Citizen.

Immigration is a hot topic in Washington.  Criminal actions can have extremely complicated and far-reaching implications for people seeking naturalization or people who may seek to apply for citizenship in the future.  Immigration issues often put people in “must-win” situations in Court.

2.  If You Have Special or Professional Licensing.

Criminal charges and professional licenses don’t mix well.  If you’ve got any type of special licensing required by your job it’s important your lawyer know so they can do everything possible to protect that licensing.  It ranges from a license to practice law, medical licensing and even commercial driver’s licenses.  Again, we’re not psychic and a criminal conviction can might only result in probation — but a loss of licensing could cause permanent damage to your livelihood.

1.  The Truth.

Having criminal charges pending against you isn’t much different from being on an operating table.  You wouldn’t lie or even shade the truth to your Doctor about where they need to cut to save your life.  Telling your lawyer something which misleads them only hurts you in the long-run.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice on any situation you should contact an attorney directly. 

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