When an Interlock Ignition Device is Required for a DWI – and When it Comes Off

January 10, 2021

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

The blow devices to start your car (also known as “deep lung devices,” “DLDs,” or “Interlock Ignition Devices”) have been one of the most major developments in DWI cases over the last 15 years.

The Texas Legislature and courts have been increasingly requiring them in impaired driving cases.  In some circumstances they can be ordered to be placed on your car immediately after an arrest and can remain on the vehicle even after a person finishes probation years later.  The legislature has even incentivized folks to get interlock devices by offering benefits such as non-disclosure eligibility if someone voluntarily keeps one on their car during probation when they otherwise wouldn’t be required to keep one.

Possible Times when a DLD Can Be Ordered By A Judge

 

As you can see, the case has many times where the interlock can be ordered onto the car by the Judge.  Many of these time periods can and do run consecutively and over-lap meaning the interlock may simply stay on from the point a person gets it onto their car until the case is finished.

Ignition interlock providers claim it can only be removed by court order and have this provision in their service contracts… so they typically won’t even remove the device unless or until they see a court order.

What if You Don’t Drive Anymore or Can’t Have the Interlock for Some Other Reason?

Most judges will allow you to substitute a hand-held device for an interlock device though I’ve not found any support in the code for this.  If you have questions or need an alternative or to substitute the interlock device then speak with your lawyer.

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


Failure of a Lawyer to Give Immigration Advice in a Criminal Case

January 9, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Immigration is such a major topic in criminal defense the topic has been given it’s own name:  Crimmigration.

Criminal defense lawyers have a non-delegable duty to advise their clients about immigration consequences.  The point was made clear in the landmark US Supreme Court case Padilla vs. Kentucky, 559 US 356 (2010).  Padilla holds it is ineffective assistance of counsel for a lawyer handling a criminal case not to advise a client about the immigration consequences and dangers which come with the criminal case.  This is because erroneous advice – or not giving advice at all – can lead to a client’s deportation, removal or ineligibility to renew immigration status.  It is not enough for a criminal defense lawyer to tell their client, “your immigration issue is not my problem – I’m just handling your criminal charges.”

I’ve blogged before on the complexity of immigration issues in the criminal context and you can read it here.

Being Aware of Immigration Tripwires in Criminal Cases

Immigration law is it’s own completely different practice of law from criminal law.  I explain to clients that me giving immigration advice in many ways is like a foot doctor giving advice about your shoulders.  Nonetheless, Padilla and the cases which have followed require criminal lawyers to educate themselves in immigration law enough to effectively advise clients about what can and can’t happen because of things like guilty pleas, conditional dismissals, or specific sentences.

Some immigration rules require detailed analysis about facts and issues which are easy for a criminal lawyer to over-look.

For instance, immigration courts have different classifications for drug possession than Texas criminal courts.  The Texas criminal courts have their own scales for charging drug possession cases which don’t necessarily correlate to the federal court’s or immigration court standards.  Many Texas criminal lawyers may just skim the amount ultimately weighed just to make sure it comports with Texas law – but the lawyer must also beware the tripwire of the immigration consequences if applicable too.

Being Extremely Cautious in Decisions Which Affect Immigration

I tend to be extremely cautious when dealing with immigration issues and complications.  It’s because immigration has been and will probably always will be a white-hot legislative topics in the federal government.  Just because the law says pleading guilty offense x in 2021 is fine doesn’t mean the laws can’t change in 2026 and take a completely different view of what we did 5 years before.

What Happens When My Lawyer Gives Me Bad Immigration Advice?

It’s common for our office to get phone calls when someone has taken a plea deal of some sort and then they get detained, removed, or are not allowed to renew their citizenship status.  It’s often the first time the client had any inkling there would be a collateral immigration problem connected with their criminal case.

When a lawyer doesn’t give immigration advice either because it scares them or they just didn’t spot the issue at all – or if a lawyer gives bad immigration advice it can be “ineffective assistance of counsel.”  Ineffective assistance of counsel in an immigration setting means the lawyer didn’t give proper advice and as a result – the client’s decision was rendered “involuntary.”  An involuntary decision – usually to plead guilty or no contest – is nullified in the event there was ineffective assistance.

Ineffective assistance of counsel can be addressed through different legal mechanisms such as a “Motion for New Trial” or a “Writ of Habeas Corpus.”

Ask Your Lawyer About Immigration Consequences

If you have any questions in a criminal case setting about immigration consequences – ask your lawyer.  It’s your criminal defense lawyer’s job to properly advise you about immigration consequences.  Often times it may take a joint session between criminal and immigration lawyers working together to make sure the client fully understands.

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

 


Can Police Track Your Phone?

January 8, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

The short answer is yes – but there are ever increasing legal hurdles in law enforcement’s way.  The issue is highly complex, evolving and will continue to evolve as technology changes society.  No page-long blog will do the topic justice but I hope to give you at least a basic legal primer.

The 4th Amendment to the US Constitution is your right to be free from “unreasonable” searches and seizures from your government.  Tracking a person’s phone either in real-time or after the fact has been the subject of intense legal scrutiny for some time now.

Is Tracking Your Phone a Search Within the Meaning of the 4th Amendment?

Courts agree inspecting the contents of your phone, wiretapping a phone call, or affixing a GPS monitor to a persons vehicle are “searches” within the meaning of the 4th amendment.  It’s taken some time for courts establish these norms but they have all one by one been accepted.

Much of what constitutes a “search” hinges on what we consider our own “expectation of privacy.”  We all have a much higher expectation of privacy in our night stand drawer than in our bag we’re bringing on a plane.  So the courts have had to answer the question of where does the smart-phone and the information rank between the two extremes?

The answer is different today than it was in 2005 because of the advances in technology and because of our reliance on smart device technology… and because of both of those things we have different expectations of what is or isn’t private about our phones.

Courts now recognize the contents of our phones today contain work information, banking information, medical information, information about the books we read, the historical figures we admire, who we’re angry with in our family, where we’ve been, where we plan on going in three months or in an hour…  In short we have developed an intense dependency and sense of privacy about our phones and the courts know this to be true.

Is Tracking a Phone an “Unreasonable” Search?

Again – what is reasonable changes.  A “reasonable” search at an airport on September 12, 2001 might not have been considered as such on September 10, 2001.  Our more intense reliance and privacy with the phones make them harder and harder for police to justify tracking or searching.

But understand an “unreasonable” search becomes reasonable if law enforcement can legally and procedurally justify attaining whatever it is they’re looking for.  The legal question is just how much justification do they need and whether it requires attaining a warrant?

What Information Can Police Attain About Your Phone & How They Get It

I’m not a technology expert so I don’t know what and how the police can track.  I’m sure if they’re not tracking phones in real time already then at some point I’m sure there will be the capability for them to do that.  Probation departments and supervision departments can require either software or hardware downloads which allows them to track usage – but that’s not the same thing because in those instances the individual knows – and has often agreed – to being tracked.

Phone Dumps and Downloads

The law is more clear in this area – police need a warrant to get into your phone if you don’t consent to it being searched.  What they can get once they get in your phone is a technology question which I don’t have the qualifications to answer… but I’m sure this is an evolving cat and mouse game like everything else in the law/ technology realm.

Records

Police can and often do obtain records from data providers and other third parties such as apps from their private offices.  The mechanisms may vary from State to State but the providers may be able to voluntarily provide records to law enforcement based on the terms and conditions of the usage – or as is more often the case – law enforcement can subpoena the records.  In some instances the federal government requires third parties to report certain activity to the National Center for Missing and Exploited Children.

Also, third parties who may have records the police want such as Facebook or Twitter or some of your other tech giants can be extraordinarily difficult to deal with for both law enforcement and the defense due to nothing more than their sheer size, amount of data they mine, and amount of users they have.  They have legal compliance departments but even Court Orders have the ability to sit in someone’s pile or in-box for who knows how long.

Courts are moving in the direction of requiring warrants to accompany the requests but this is an intensely complex and evolving area of the law.  Many of the third-party companies host apps and aren’t in the United States.  This adds yet another layer of complexity.

Bottom Line

For the police or law enforcement to track your phone after the fact or in real time is currently and will be one of the great battle-lines in courtrooms for the 21st century going forward.  This question is truly the convergence and intersection between radically evolving civil liberties and radically evolving technological capabilities.

Stay tuned.

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

 

 

 

 

 


Will a DWI Ruin My Life?

January 6, 2021

By McKinney Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Driving while intoxicated convictions are very intensive with consequences that are far ranging.  Most of the consequences are what lawyers and courts refer to as “direct” consequences.  This means we know what those consequences are and we can see them coming.

Indirect consequences are much more difficult to calculate.  An example of a direct consequence of a drunk driving conviction is the potential for probation or an interlock device on a car.  The law requires it.

An indirect consequence, on the other hand, is what will your boss think.  That’s the hard part to know.

Common Direct Consequences of a DWI Conviction

The punishment for a Driving While Intoxicated Offense in Texas is This:

  • Up to 2 years probation for misdemeanors (DWI 1st or 2nd);
  • Up to 180 days jail for DWI 1st with blood alcohol under (BAC) 0.15;
  • Up to 1 year of jail for DWI 1st with BAC 0.15 or greater;
  • Up to 1 year of jail for DWI 2nd;

Other requirements for DWI probation (direct consequences) are the inability to terminate probation early, the requirement for interlock devices for DWI 2nd or more or if the BAC is greater than 0.15.  There is a new “superfine” the legislature requires if a person is sentenced to jail on a driving under the influence case of $6,000.

Indirect Consequences Which Can Be Harmful to a Career

There are certain professions where a DWI affects you and some where they don’t.  If you drive a school bus then a DWI is bad news.  If you are law enforcement or a first responder, then again – it will cause you problems.  Pilots obviously have major headaches with DWI arrests with the Federal Aviation Administration (“FAA”).

But what if you’re a doctor or a registered nurse?  You could have licensing issues because the boards which regulate physicians and/or nurses in Austin will want to make sure there aren’t underlying substance issues.

There are some professions which simply don’t have much of an intersection with DWI arrests.  If you are a CPA, a hairdresser, or even an attorney – a misdemeanor DWI shouldn’t do you much professional harm.

But remember a criminal conviction is permission for someone to discriminate.  Is it possible you could lose a job working at a bank because of a DWI arrest or conviction?  I would hope not – but if your boss was a victim of a drunk driver then potentially it could happen.

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

 


What is Cyberbullying and When is it a Crime?

January 3, 2021

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Texas laws on cyberbullying are somewhat smattered in different places.  Some laws are civil and could result in being sued, other infractions may result in school discipline and others are actually criminal.

Cyberbullying Defined

Harassment or stalking is what most people would consider cyberbullying behavior but online conduct aimed at demeaning, harming or threatening others and may take a variety of forms.

The Texas legislature has tried to address cyberbullying in criminal contexts but – there are balances with the first amendment and there is always the problem of keeping up with the ever-changing technological and social norms.

How the Education Code Defines Cyberbullying:

“Cyberbullying” means bullying that is done through the use of any electronic communication device, including through the use of a cellular or other type of telephone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an Internet website, or any other Internet-based communication tool.

It’s extremely important to remember, though, the Texas Education Code doesn’t make cyberbullying a crime.  It only gives school authorities enhanced abilities to deal with the problem.  The reason for this approach is likely the First Amendment which makes it more difficult for the government to actually punish someone for speech or a communication.

How the Penal Code Defines Cyberbullying:

Texas Harassment statute (Texas Penal Code 42.07) was intended to protect against cyberbullying and it reads (in relevant part),

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;

(2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property;

(6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; or

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

(b) In this section:

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine;

This law makes it a class a misdemeanor under 42.07(a)(7) punishable up to 1 year in the county jail and a fine not to exceed $4,000 if the victim is under 18 and the conduct attempt to get the child to either harm themselves or commit suicide.  Otherwise it is a class b misdemeanor punishable by 180 days of jail and up to a $2,000 fine.

Defending Cyberbullying Charges

There is always the first amendment – but not many folks want to take their case all the way up to the Supreme Court.  The First Amendment guarantees the government cannot stop people from free communication and expression.  There are, of course, limits to free speech.  The textbook example is you can’t yell “fire” in a movie theater.

Intrinsic to the statute is the bullying needs to be “reasonably” likely to cause the alarm sufficient to convict.  This just means the criminal charges have to pass the smell test – though allowing a jury to debate an issue like this can be scary.

Juvenile Courts and Cyberbullying

Also many cyberbullying cases take case in juvenile courts who have jurisdiction over offenders who are younger than 17 years old.  Those courts tend to take more of a collaborative or therapeutic approach to curb future behavior.

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