Is it a Crime to Have a Positive Drug Test?

October 21, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

It’s not a crime in Texas to fail a drug test or urine analysis (“UA”).  Possession of any illegal drug such as marijuana, cocaine, or any other controlled substance without a prescription is defined as “actual care, custody, control or management.”  Tex.Pen.C. 1.07(39).  Failing a UA does not demonstrate this as backward as it may sound.

Texas courts apply what is known as the Corpus Delecti rule.  Corpus Delecti is latin for “body of the crime.”  The prosecution in every case must prove a crime was committed.  An out of court confession, in and of itself, is never enough to sustain a conviction.

A classic and more clear example of corpus delicti is someone who confesses to arson – yet the building the person claims to have burned to the ground is completely unharmed.  Legally, this is indistinguishable from a person failing a drug test to prove a person had “actual care, custody, control or management” of a drug they shouldn’t have had.

You Can Still Be in Trouble for Failing Drug Tests

If you are on bond for a crime – a failed UA is legally sufficient to hold your bond insufficient and have you re-arrested.  It can also be grounds for a motion to revoke probation or a motion to adjudicate.  This is because the formal requirements of the corpus delicti rule are loosened for these proceedings and because typically terms of bond and/or probation are more broad as well to prohibit failing drug tests.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

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Will My Probation Get Revoked?

October 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Legally you could be revoked for showing up late to probation – but that’s obviously an extreme and unlikely scenario.  There are countless variables which go into whether or not your probations revoked – so each case is truly unique.

Those variables can be things like the nature of the underlying offense?  How severe is the new infraction?  Have there been other infractions?  Is the probation officer understanding about your situation?  Are they lazy?  Are they a jerk?  Passive?  Controlling?  What does your county typically do with similar cases and infractions?  The list goes on and on and on.

I get plenty of calls asking me this exact question… will I be revoked?  I understand the anxiety and uncertainty of the position the probationer is in and I really do my best to try and handicap each situation.  But each situation is very different.  Here are some general guideposts, though:

Is the Probation Violation a New Offense or Crime?

If you’ve been arrested again for a new charge your probation officer probably doesn’t have much say in whether or not a motion to revoke or motion to adjudicate is filed.  Those are likely to be dictated by office policy and your PO’s hands are usually tied.

If you do get arrested for something new – and you don’t get revoked – count yourself lucky.

Every probation plan or order I’ve ever seen requires a person to notify their officer upon a new arrest.  So it’s normally a separate probation violation not to disclose it.

“Technical” Violations of Probation

We typically refer to issues such as failure to do community service or take classes as “technical” violations.  Whether your probation is revoked based on a “technical” violation is up to your probation officer.  Failure to pay fines and money fits into a bit of a different legal category – so I’m not including that here.

It really is impossible to quantify what each individual probation officer would do in any county in Texas in any given scenario.  If you’re on probation for drugs or DWI and you’ve done 90 out of 100 hours of community service – I like your odds of not being revoked more than if you’re on probation for a violent crime and have done 0 out of 100 hours of community service.

I also like your odds of not being revoked on a “technical” violation more if you’ve never been in trouble with your PO before than if your PO has already given you 5 warnings about the same thing.

Positive Drug Tests

This is a very common trigger for a revocation or adjudication.  My experience is it takes more than one – but this is an area where each county is different.  The main reason a single positive UA probably won’t get you revoked is your PO has a lot of options at their disposal to remedy or punish short of full-blown revocation.  It could include a jail sanction, additional classes, or even them asking you to extend your probation.

But Here’s What Experience Teaches Me — At Least in Collin County

It never hurts to be on your probation officer’s “nice” list and not “naughty” list.

Being a probation officer is a very tough job as much as I might criticize them.  Most are over-worked and under paid.  They are like you and I.  I’m guessing it’s easy for them to deal with most people on their case load — and then they have some they deal with regularly who aren’t very pleasant to work with at all.

I don’t think many probation officers show up to work looking to screw people.  The fact is they have enough headaches on their case load without inventing more.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

 

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Mental Illness & Criminal Law: What is Legal Competency?

October 17, 2020

By Criminal Defense Laywer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

“Competency” is the ability to stand trial.  Texas law provides a complex web of procedures which deal with making sure an accused is mentally capable of being tried.

“Incompetency Defined”

It is defined by Tex.Code.Crim.P. 46B.003 which holds:

(a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Translation:  competency is a somewhat low threshold.

A Rational, Factual Understanding Isn’t Enough

A misnomer is where a person understands basics about their charge such as the nature of the accusation, the role of defense counsel, the prosecutor and the judge – that they are okay to be tried.  Even judges make this mistake.

The person’s “sufficient present ability to consult with the person’s lawyer” is also crucial.  Often highly intelligent and high functioning defendants can still sometimes not have a coherent discussion with counsel.

Many people suffering from things like severe anxiety, manic behavior, or racing thoughts simply can’t keep it together for the time it takes for their lawyer to properly advise them – let alone try to get details to mount an effective defense.  To me, this is the very essence of “incompetency.”

Suggestion of Incompetency

If a lawyer is concerned their client may have enough issues which affect their ability to stand trial – the lawyer can and should file with the Court a “Suggestion of Incompetency.”  It puts the case on pause though it does sound a bit harsh.  The prosecution can file the motion and in some instances the Court can make the suggestion as well.

The trial judge then appoints a mental health professional to do a competency evaluation.  The Court then holds a hearing after the evaluation is complete and finds either defendant is competent to stand trial or he/she is incompetent for the purposes of trial.  If they are competent then the case resumes.

What Happens When the Accused is Found to be “Incompetent”

Mental health professionals attempt to restore the accused to competency through mental health treatment.  It can be in-patient or out-patient depending on the severity of the charge, whether the person is on bond, and the resources available to the county.

Any confinement in a state hospital cannot exceed the maximum punishment range for the charge.  In other words the maximum punishment for assault causing bodily injury is 1-year.  In theory a person could be confined for the entire year being ‘restored’ but no longer.

Mental health providers routinely update the Court and if the person is restored to competency — sometimes as simply as getting a person the correct medication — the case then proceeds.

What Happens When the Defense And Prosecution Disagree About Competency?

Most of the time the Judge, prosecution and defense agree on competency issues.  In cases where we don’t, Defendant has the right to invoke a right to a jury to prove they are, in fact, incompetent to stand trial.  This would be a way of demanding help for mental illness where the prosecution and/or Judge minimize the impact of mental health or see it as an excuse to avoid responsibility for a crime.

Why Would Someone’s Own Lawyer File a Suggestion of Incompetency Which Could Result in Confinement?

This is a fantastic question.  And perhaps they shouldn’t for this very reason depending on the severity (or lack of severity) of the charges.  A lawyer hired to defend a client from the charges they are facing.  A client needs to be able to fight those charges.  If a lawyer were to enter into a plea bargain or have the client participate in a trial they doesn’t understand – this could very often lead to a far worse result than mental health restoration in a state hospital.  Again – this precise issue is a fantastic debate without a clear answer.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

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Hiring Expert Witnesses for Your Case – What You Should Know

October 11, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Expert witnesses are an important part of trial advocacy.

What is an Expert Witness?

A person with specialized knowledge of a particular is allowed to testify provided they comport with other rules surrounding reliability in both Texas and Federal Courts.

Judges have a detailed legal framework they must follow to determine if a particular expert may testify in a particular case.

Experts can testify in applied scientists such as DNA or blood analysis, areas such as computer forensics, cell phone tower triangulation, and in soft sciences such as therapy or domestic violence, and even in areas such as accounting, plumbing, or as in the movie “My Cousin Vinny,” — independent rear suspension cars made in the 1960’s.

Do I Really Need an Expert Witness?

Follow your lawyer’s recommendations here.

The defense can establish their own trial theory either through their own witnesses and experts or through the prosecution’s witnesses and experts.  Prosecution witnesses and experts are predictably uncooperative with us and some of their experts will easily admit to shortcomings in the state’s case and others won’t.  There is no substitute for the clarity and power a good expert witness can provide on your side.

There are risks to proffering an expert witness in your defense.  A good expert witness should be loyal to their discipline – not necessarily to you winning your case.  This helps them be credible.  But this also means your expert may have to admit to facts which can hurt your case when the prosecutor asks… and sometimes those could be facts and analysis the prosecutor was never aware of in the first place.

Ultimately the complexity of certain issues often dictates.  Trial is teaching the jury a theory.  That can be hard with a state’s expert who sees it as their job to make sure you lose.  A good expert witness on your own side is often necessary.

Why is an Expert Witness Paid?

I don’t work for free and neither do you.  I haven’t met anyone who does.

The fact a defense expert witness is paid and how much are typically good fodder for prosecutors on cross examination.  If you think about the fact they’re paid – it’s actually a good thing.  That is because testifying is their livelihood and for that reason they wouldn’t jeopardize it by saying crazy or quack science when a court reporter allows everyone in the State to know how they testify.

The Court Can Pay For Your Expert

The Court can pay for someone’s expert witness in certain instances — even if the lawyer is retained privately.  The expert must be willing to accept the court’s payments which are typically lower than on the private market and the Court will underwrite and evaluate Defendant’s financial status.

Ask your lawyer about Court assistance for experts if money is tight.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by the Texas Board of Legal Specialization.

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Lessons From Marijuana Legalization in California

October 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

I recently started doing a podcast.  Since I love talking it’s really been a blast.

My guest yesterday was a lawyer in California named Josh Schneiderman.  Josh works for a 450 lawyer firm with offices around the Southwest named Snell & Wilmer.  He represents businesses and companies in California in the cannabis industry.  By all accounts it is a cutting edge practice.

You can watch the podcast here.

Here are some major takeaways from the discussion:

While cannabis is legal in California, it is still prohibited by the Federal Government

This creates major headaches in far reaching areas you might not anticipate.  For example, if you are trying to patent a particular cannabis product – the Federal Government won’t grant you a patent.  Or, if you need a loan from a federally backed lender – you can forget that too.  Or, if you need bankruptcy protection you can’t get that either.  And the list goes on and on.

Some Banks and Credit Unions Will Take Cannabis Money – But it’s a Challenge

If a bank is going to take cannabis money — usually cash — they have a complex scheme of checks and audits they are responsible for to make sure they aren’t taking black market deposits.  That includes in some cases detailed direct analysis of the grower or retailer of the marijuana which larger and more sophisticated banks are unwilling to do.

The Cannabis Industry is Still Largely Based on Cash

Credit card companies are intimidated and scared by some of the regulatory nightmares and possible liability – so many in the legal cannabis supply chain still operate on cash.  That forces others in the chain to do the same.

These observations were the “tip of the iceberg.”  We discussed much much more including the path Texas seems to be on towards potential legalization and the pitfalls along the way.  I hope you’re able to watch.  It was truly a fascinating discussion!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is designated as a Texas Super Lawyer by Thomson Reuters.

 

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