Your Driver’s License Isn’t Actually Automatically Suspended If You Refuse A Breath Test

February 20, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Texas DWI’s have two sides.  There is a criminal side and the administrative side (i.e., the driver’s license suspension.)  Today I’m only discussing the administrative driver’s license suspension side.

Texas has an “implied consent” law.  This means when you got your driver’s license, you implied to the Department of Public Safety (“DPS”) that if an officer ever offered you a breath-test, you would comply.  If you fail to comply – or you do comply and blow over 0.08 – then your driver’s license can be suspended.

What the DPS media blitz omits is that this isn’t automatic.  You have 15 days from the date of arrest to submit an appeal.  The instructions are on the sheet of paper they should have given you when they confiscated your driver’s license.

You are appealing the officer’s decision to ask you to take the breath test and/or the breath test score.  These things can be very legally technical and it is frankly difficult for people to win without lawyers.  These proceedings are generally called ALR’s by lawyers which is short for Administrative Law Review.

ALR’s are done in Collin and Dallas Counties like a deposition in a conference room and most lawyers advise their clients not to attend.  If the ALR Judge determines DPS lost your ALR, then your driver’s license is not suspended.  This happens all the time.

The ALR proceedings run concurrently or parallel to your criminal DWI case.  Sometimes the ALR proceedings take longer and sometimes they’re shorter.  If you win your DWI on the criminal side, the driver’s license suspension can also be negated.

*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 consult an attorney.

1 Comment | DWI, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Notice to Appear Letter

February 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I Just Got a “Notice to Appear” Letter.  What Does it Mean?

You have been charged with a criminal offense in Collin County, Texas.  In all likelihood it stems from an arrest in the previous months perhaps for DWI, marijuana possession, assault or theft.

This letter means the case has been formally charged by the District Attorney’s Office (for misdemeanors) or a Grand Jury (for felonies).

Why Do I Need to Be In Court?

Court appearances serve two functions.  It’s the Court’s way of making sure (1) you are attempting to resolve the case; and (2) you’re honoring your conditions of bond.

Collin County Courts handle thousands of criminal cases per year.  Having Appearances is how they keep cases moving through the system.

What Will Happen at this Appearance?

An appearance is like a work session between your lawyer and the prosecutor.  This is your lawyer’s opportunity to get a police report, video evidence, and plea recommendations from the prosecutor.

Most of the time a first appearance in Collin County results in the case being “passed” for another announcement – meaning you’ll come back in another month for another court date.

By the second month, though, hopefully your lawyer will have been able to do even more legal research and factual research based on what they learned on the first setting so they can have a better picture in your case.

Your case may have several announcement settings before it is resolved either by a trial, plea or dismissal.

What Do I Need to Do to Prepare?

Nothing.  An appearance in Collin County isn’t a trial or a contested matter.

If you do see the judge it’s almost always going to be your choice.  If you chose to plead guilty on the very first setting, you’ll see the judge or if you come to court without a lawyer, many judges will lecture you on the dangers and disadvantages of not having a lawyer in front of the court reporter.

What Happens if I Don’t Come to Court for My Appearance?

If you don’t come to court, a warrant can be issued for your arrest.  Some Courts will excuse your appearance on a first or second announcement IF YOU HAVE A LAWYER.  You should never assume your attendance is excused, however, and should always clear it in advance.

Do I Need a Lawyer for a First Appearance?

Yes.

Many people feel like they just want to talk with the prosecutor first.  That might be okay if you were charged with a parking ticket or moving violation.  If you have a court case in County Court at Law or District Court in Collin County, though, your charges are a bit more severe.

Here’s what I think about visiting directly with a prosecutor about your case.

*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 you should consult an attorney.

2 Comments | Assault, Drugs, DWI, Theft, Uncategorized | Tagged: , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

What Happens After an Arrest and Release From Jail on a DWI

February 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

You’ve been released from jail after the worst night of your life after a DWI arrest.  Now what?

You’re immediately responsible for two things when you get released.

First is that if your driver’s licenses was taken by the officer because you either refused the breath test or the machine reading was above a 0.08 – you have 15 days from the date of the arrest to file for an Administrative Law Review Appeal (“ALR”).  If you don’t file your appeal, your temporary driver’s license (the yellow sheet of paper they’ve given you at the jail) will be valid for only 40 days from the date of arrest.  If you do appeal – the suspension is put off until your hearing, which is usually farther out than 40 days.  If you win the ALR, your license doesn’t get suspended.  If you lose the ALR, you may be eligible for an occupational license.

Second is that, in all likelihood, you’ll get a notice to come to Court.  Collin County will mail your court date usually somewhere between one and two months after your arrest — but it can be sooner so watch your mailbox!  Dallas gives you a case number and has you check in every few weeks until the case is filed – at which point you can begin evaluating the nuts and bolts of your case.

Collin County will sometimes give you an immediate court date a week or so after your release from jail on a DWI for the purposes of complying with Texas code provisions that require a judge to assess whether you need an interlock device (deep lung device) on your car.  You should get this notice upon leaving jail if you get it at all.

*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 this situation or any legal matter you should consult an attorney.

1 Comment | DWI, Uncategorized | Tagged: , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Top 5 Mistakes in Hiring a Criminal Defense Lawyer Countdown — No. 2

February 16, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This Week I’m Counting Down the Top 5 Mistakes People Make When Hiring a Criminal Defense Lawyer.

#2:  Hiring a Lawyer that Gives You Unreasonable Expectations

I’m licensed to practice in Texas.  Here it is unethical for a lawyer to promise a client certain results.  I can’t imagine it’s permissible in any other state.

I often visit with people and my view of the case is much brighter and more optimistic than they anticipated.  But making a promise there is even a sliver of a chance I can’t keep helps no one.

Every single case – DWI, marijuana, felonies, or whatever, is like a snowflake.  Each set of facts has it’s own unique nuances which may turn the laws in different ways.  There’s also the unpredictability of humans such as prosecutors, witnesses and not least of all – juries.

A Doctor can’t predict how the human body will react to treatment with 100% certainty – and a lawyer can’t predict how the human judicial process will react with 100% certainty.  Good lawyers recognize the variables and do their best to put those variables in perspective.

Every lawyer takes an oath to zealously represent their client.  Any lawyer you hire should be willing to fight for you and defend your case aggressively.  A guarantee isn’t part of the equation.

Another thing to consider about a lawyer that promises results – is that it’s not smart from the lawyer’s perspective!  Even if that lawyer can deliver on their guarantee often – they’re breaking their pledge probably just as often.  If a lawyer makes a mistake like this in their own judgment – how can you expect them to be smart with your case!

 

3 Comments | crimes against children, Drugs, DWI, Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Why You Shouldn’t Represent Yourself in a DWI

February 9, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Here’s why:

DWI Laws Are Nastier Than You Think

The laws against DWI are getting nastier and nastier with no end in sight.  My clients hear me repeat the phrase, “no politician ever got elected in Texas promising to go easy on DUI cases.”

Many people arrested for DWI feel they were wrong and should take responsibility for their mistake.  While this is an extremely admirable trait — it assumes the price for taking responsibility isn’t cruel and thoughtless.

The one thing the legislature can’t take away from you is your constitutional right to an advocate.  It’s the only way to try and level the playing field.

Don’t Assume Your Arrest is a Lost Cause

First, as any prosecutor will tell you, DWI’s can and do very frequently end in acquittals.  Jurors are just like you.  In a DWI they truly presume you innocent unlike other cases.  They listen much to the dismay and chagrin of the prosecutor and the police officer who would have them believe there is only one side to the story.

Scientific Testing are Man-made Mouse-traps

Blood and breath tests can be discredited through different scientific arguments and sometimes you can demonstrate to the jury the test was simply improperly conducted.  The equipment is fallible and jurors are often surprised at just how imprecise these machines truly are.

The practice of blood warrants is controversial.  Forcibly putting a needle in someone’s arm would be a 2nd Degree Felony under the Texas Penal Code (aggravated assault with a deadly weapon) if it weren’t conducted under the color of law.  Regardless, DWI enforcement has lost so much perspective that this practice is justified to solve first-time DWI offenses that are Class B Misdemeanors.

Police Have to Follow the Rules Too

Additionally, Judges frequently suppress improper traffic stops or other improper police contact.  This means that where an officer has been overly-aggressive in finding a reason to pull a car over or the officer didn’t have the right to visit with you… all or some of the evidence may be thrown out by the Judge if improperly attained pursuant to Texas Code of Criminal Procedure 38.23.  In those instances field sobriety tests, breath tests, and even blood tests can be inadmissible for the prosecution.

There is so much at stake in a DWI for your future that a short article hardly does it justice.  I’ve only addressed the tip of the iceberg as far as consequences and punishment.  There is so much other red-tape such as driver’s licenses suspensions, surcharges for driver’s license renewals, and deep-lung-devices being ordered on your car, it hardly makes sense to go into this process alone.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.  He is designated as a Texas Super Lawyer by Thomson Reuters.  www.texasdefensefirm.com.

1 Comment | DWI, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

« Previous Entries
Next Entries »