The 5 Most Common Questions I get as a Criminal Defense Lawyer: #1 “Am I Going to Jail?”

March 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Most people vastly over-estimate their jail possibilities.  I spend a good deal of time explaining why things are nearly as bad they may seem.

Our minds tend to link together what I call “the chain of terribles.”  That is we take one terrible result, and infer another logical awful result, and then another and another and another.  But this is almost never realistic.

Let me give you an example — at the time I write this blog, the Coronavirus is exploding across the world.  The NBA just suspended their regular season.  Part of my mind wants to suggest the world economy will crash (the dow is down 20% from a month ago), my law practice will go down the tubes with the economy, there will be widespread disease and then famine, the NBA will never play again, and the survivors of the virus will have to barricade themselves from zombies in makeshift houses.

That is the chain of terribles.  But I’m guessing if you read this even 6 months from now, you’ll see how ridiculous my conclusions were.

The same thing happens when people consider jail.  They’ve typically already been arrested and have bonded out — and they want to know “will it happen again?”  A perfectly understandable and valid question.  Those fears are often fueled by lawyers and their webpages trying to scare you into hiring them.

Jail exposure is obviously on a case-by-case basis which includes tons of variables such as the nature of the charge, mitigating factors, what county is prosecuting the charge, criminal history, the specific prosecutor, judge, etcetera, etcetera, etc…

Understand a handful of factors which, in general, reduce inmate population.

  • Running a jail is money-losing proposition.  It is a hotel where no one pays.  Most counties don’t want to feed you and house you if they don’t have to.
  • Most judges and prosectors believe in rehabilitation.  Very few will stop someone from getting help they need to manage substance issues which frequently contribute.
  • There is a much better understanding of anxiety, depression, and other maladies which can contribute to someone’s predicament.
  • Finally — it’s your lawyers job to effectively tell your story — and everyone typically has a good one.

Bottom line: If you’re like everyone else – then you’ve probably exaggerated your own jail chances.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified by the Texas Board of Legal Specialization in Criminal law.  Nothing in this article is intended to be legal advice.

 

 


The Most Common Question I’m Asked as a Criminal Defense Lawyer #2: “Will My Work Find Out?”

March 6, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I notice when something embarrassing happens in my life, It feels like everyone around me knows and they just aren’t talking about it.  It’s a weird phenomenon.  Surely people will find out eventually if they don’t know at the moment, right?  Then I remind myself the planet doesn’t revolve around me and most people don’t spend all day wondering about my life.

I know my clients go through the same thing.  Every morning the Courthouse is filled with hundreds of people — all of whom assume everyone is looking at them knowing their deepest darkest secret of why they are there.

But people typically only know what we tell them.  And even then they only listen part of the time.

Your workplace is usually no exception.  Unless your workplace is directly wired into to government databases about arrests (and some are), there is usually no way they’d become aware of an arrest absent some obvious indication.  Background checks are expensive and private companies typically don’t order them just to order them.

Here’s the better question — does your employee handbook require you to report an arrest?  Texas is what is called an “at-will” state for employment.  That means you can be hired, fired, promoted or demoted for a good reason, bad reason, or no reason at all.  If you have the duty under your handbook to report an arrest and you don’t then you’ve put your head on the employer’s chopping block.  Then again, they occasion of your arrest may get you canned just the same.  What to do?

Sometimes the answer as to whether to disclose an arrest to an employer just comes down to faith and trust your employer will hear someone out and treat them fairly.  It can absolutely be a case by case basis.

But to answer the original question — employers typically don’t know about the vast majority of arrests.

*Jeremy Rosenthal is an attorney licensed by the State Bar of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is designated as a 2019 Super Lawyer by Thomson Reuters, Inc.  Nothing in this article constitutes legal advice.


5 Most Common Questions I’m Asked: #3 “What Will Show Up on a Background Check After My Arrest?”

March 2, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

What does a criminal history or background check show right after someone is arrested? To know this, we have to understand how a criminal background check works in the first place.

How Does a Criminal Background Check Work?

The Government’s Role

The government keeps your criminal history including arrests and the outcome of those arrests.  They do it through two main databases in Texas.  One is kept by the FBI called the NCIC (National Crime Information Center) and the other is kept by the Texas Department of Public Safety called the TCIC (Texas Crime Information Center).  These databases are not available to the public and access is controlled tightly.

A third source of information is often the county where the criminal case is pending — and some counties are better than others about publishing these materials (and their accuracy).  This information typically is public unlike the TCIC and NCIC.

 

How Can My Work See My Arrest?

The vast majority of background checks are done through private companies such as LexisNexis, publicdata.com, or GoodHire. Those companies are merely re-publishing lists they purchase from the government from TCIC, NCIC or the county of arrest.

In exchange for purchasing the lists, the companies are highly regulated about what information they can publish and for what reasons.

So here’s whats happening: NCIC and/or TCIC sells your information to a company (Like LexisNexis) and your employer buys the information from them in the form of a criminal background check.

 

What Will Show Up and How Quickly?

We have to assume in the information age the database is in real-time or close to it.  The database used to be updated periodically.  This was a blessing and a curse.  A blessing because an arrest wouldn’t show up for weeks or months — and a curse because it would take equally as long to erase if you got your case expunged or non-disclosed.

Basic information is typically available such as the date of the arrest and what the arrest was for.  Once there is a final result such as a dismissal or a guilty plea and there is a sentence imposed it may very well be reflected too.

Some Good News

Criminal background checks aren’t cheap and the employer has to certify they are using it for a valid purpose.  They can’t just do one for the sake of doing one.  If you’ve got a stable job then it’s rare your employer will just run a check out of the blue.  If you’re trying to get a new job or a promotion then a background check is going to be more of an issue.

The Solution

Expunctions and non-disclosures are how we erase or hide criminal cases from the public.  You can read about how those work here.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is licensed in Texas to practice law.  Nothing in this article should be considered legal advice.