How Should I Answer Questions on a Job Application if I’ve Been Arrested?

October 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s heartbreaking for me to hear current clients and folks who’d gone through some rough patches before be extremely excited about a potential job opportunity only to have the opportunity repeatedly crumble at the last minute over and over.

My Approach To Answering “How Should I Answer the Arrest Question”

First – I advise my clients they usually don’t have a duty to answer questions which aren’t asked depending on the job they’re applying for.  Many folks think they get brownie points for disclosing things they might not have to disclose – and in a perfect world this would be true.  My experience is the opposite, though.

It’s really important to read the question being asked, answer that question, and not answer questions which aren’t being asked.  It’s my experience many employers (and their lawyers) sometimes draft imprecise or clunky questions about previous arrests.  These are questions which might allow you to answer the questions honestly yet not require you to disclose your situation.

Remember your potential employer will also probably do a background check on you too.  You don’t want to get ‘too cute’ answering a question about your criminal history only to have the potential employer not hire you anyway.

Expunctions and Non-Disclosures are the best way to solve these problems.  An expunction allows you to deny the entire situation occurred in the vast majority of situations and a non-disclosure hides the affair from the public.

Quick Texas Guide to Background Check Questions

Have I Been Convicted?

Situations where the answer is “No”

  • If you were on deferred adjudication and successfully completed Deferred successfully for a felony or misdemeanor
  • If you are currently on deferred adjudication community supervision for either a felony or a misdemeanor
  • If your case is currently pending and you have yet to enter a plea
  • If you are waiting for your case to go to trial
  • If you went to trial and were found “not guilty”
  • If your case was dismissed for any reason

Situations where the answer is “Yes”

  • If you have ever plead guilty to a Federal offense
  • If you’ve gone to TDC or State Jail
  • If the judge found you guilty even if you were on probation

Have I Been Charged with an Offense?

“Charged” is a tricky word in these contexts.  What concerns me about the wording is I worry some may not agree with my interpretation or might not really understand what this term means.

To me, you are not “charged” with an offense unless or until the prosecuting authority (normally a District Attorney’s Office) files either an information against you in a misdemeanor or an indictment against you in a felony.

But we often hear on television or read in the newspaper someone was “arrested and charged with…..”  That’s usually not an accurate statement because normally the indictment or information follow an arrest weeks or months later.

So I do worry about folks who answer a background check question they have not been “charged” with an offense greater than a traffic ticket but who have been arrested – because the prospective employer might not understand the difference.

Overriding Advice

I always tell my clients – current and former – please call me with any questions about how to answer a specific question.

*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.  Nothing in this article should be considered legal advice.

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Retesting Blood From a DWI Arrest in Texas

October 13, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

You can retest blood from a Driving While Intoxicated arrest in Texas.

In fact, you can even retest it without the prosecution not knowing the results of the retest.

I’ve been blogging lately on expert witnesses and their role in investigation and assistance on the criminal defense team.  Remember, the law encourages defense lawyers to investigate their case without fear they will uncover unfavorable evidence.

How Does a DWI Blood Retest Work?

The blood is typically kept with the police department who originally made the arrest after it is tested by the Department of Public Safety.  They’re not going to hand over the blood to you or your retesting lab as you might imagine.

A lawyer can file an Ex Parte Motion with the Court.  That means “one party.”  A Criminal Defendant is allowed by law to approach the judge without knowledge of the prosecutor when they need to utilize the power of the court for assistance.

Your lawyer does have to convince the court the evidence will be handled appropriately and returned without incident.

The Judge, then, orders the police department (or whomever has the blood) to send it directly to your lab.  After the retest is done, the lab is then ordered to send it back to the police department.

What to Expect From a DWI Blood Retest

Blood oxidizes over time.  This means most retests will show less alcohol in the system.  However, retesting is more than a parlor trick.  Studies have been done on how much oxidizing should take place and if a blood retest shows a significantly lower result then the original – it can suggest the original test was done improperly or the blood was mishandled at some unknown point.

Can You Retest to Make Sure it is the Same Person?

Some of my clients fear they mixed up their blood at the lab with someone else.  Anything is possible.  This would require a DNA test.  These can be done too but they are far more expensive.

The Prosecution Won’t Know?

The prosecution could likely discover the police were ordered to ship it to an independent lab. And they can probably guess why.  But they’re not entitled to know the result of the retest unless Defense chooses to disclose it.  Further, the Defense lawyer would not allow the prosecutor or anyone to reference the retest if the case went to a trial.  In most instances when we reveal the blood was retested – it actually comes as a surprise to most prosecutors.

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

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Can Our Own Expert Actually Hurt Us?

October 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The legal system encourages the accused to utilize expert witnesses and professionals to evaluate and advise during the investigation and defense of a case.

A lawyer has a duty to thoroughly investigate a case they are defending and it can be ineffective assistance of counsel not to do so.  But let’s be clear – none of those duties are contingent on whether the lawyer thinks his client to be guilty or innocent.

Experts are Subject to the Attorney Client Privilege

An expert hired by the defense is part of the defense team.  That means what they learn is privileged which makes it safe to learn bad facts the prosecution might not know.

Let’s use an example from a DWI case:

The police draw defendant’s blood, put it in a tube sealed and marked with a number then shipped to a lab where it goes into the mail room where some guy sorted it while he was on his phone then sent it to the analyst who only has 100 other samples to juggle that morning…. and then the result comes back looking much higher than the lawyer thinks it should be.

The lawyer can do a DNA test on the blood to see if they have the right person.  But there is a big worry the DNA will match and defense just actually just found better evidence our own client is guilty than the prosecutor already has?!?

The rules protect this type of investigation and it’s actually possible to have blood retested or tested for DNA without the prosecution’s knowledge.  Also, whatever Defense expert learns is privileged.

In the event the gamble worked – and it’s not Defendant’s blood — Defense expert can then testify about it on the witness stand before the Judge or Jury.  Doing this would waive any privilege the expert had as part of the defense team.

In other words – the bad facts Defense expert learned can be kept secret or made public.  Defense lawyers wouldn’t investigate their cases as thoroughly if they were worried learning bad facts would only assist in convicting their client.

Using an Expert to Evaluate – Not Testify

A good expert is one who is faithful to their discipline – not a particular outcome in any given case.

It is common for me to reach out to an expert and have them do an evaluation of a case only for them to tell me, “Jeremy I don’t think you want me to testify about this case.”

The expert can still assist by giving technical support as to how defense might handle a prosecution witness or by steering defense away from problematic defensive theories.

They Can Still Hurt Us Even if They Testify

Calling an expert witness is always a judgment call.  Because the witness is loyal to their discipline and not the outcome – we have to recognize when Defense calls them to the stand — the privilege is essentially waived.  Everything which went into their evaluation and opinion is discoverable by the prosecution.

This means the prosecution can draw out either harmful facts or data which can be used to undermine our defense.

The question is whether after balancing the harm versus benefit – it still makes sense to call an expert witness.  This is where your lawyer’s experience is crucial.

*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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What is the Difference Between a Flat Fee and a Retainer When Hiring a Lawyer?

October 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefenselawyer.com

(972) 369-0577

This is a common question.

Remember a lawyer is selling their time.  Both a flat fee and retainer are different ways the lawyer sells that time.  These are actually topics of much debate in the legal community and are a bit more complex than meets the eye.

Abraham Lincoln said the legal fee is important because “It lets the client know he’s got a lawyer and the lawyer know he’s got a client.”

Important Reasons Which Go Into a Fee Amount 

A lawyer’s time is not an unlimited resource and some lawyers are justified in charging more for their time than others based on complexity of the matter and that lawyer’s experience.

Also, when a lawyer accepts your case – the lawyer is also limiting themselves because the lawyer now can’t sell time to (1) a different paying client because there are only so many hours in a day or (2) other potential clients he or she cannot legally represent because they would be conflicted from representing by virtue of their representation of you.

Flat Fees

A flat fee sounds a bit more self-explanatory than a retainer but there are still restrictions and issues with lawyers charging flat fees.

The advantage of the flat fee is it is clear-cut and caps the client’s potential financial output.  The disadvantage is the client could over-pay if the case is more resolved more quickly than anticipated.

Flat fees must still be justifiable at the end of the day.  Common sense still applies.  Where a client pays a lawyer gobs of money on day one and the client terminates representation on day two – the lawyer simply cannot justify keeping anything other than the amount he’s actually earned, if any.

Retainers

A retainer is money paid to the lawyer which the lawyer sets aside in a trust account.  The money legally remains the client’s property unless or until the lawyer earns it.  Once they earn it, they can then draw it from the account.

If the lawyer does not earn all of the money you deposited in trust then the client is entitled to a refund of the unused retainer.

The upside of a retainer is obvious.  The downside of a retainer is once the retainer has been expended, it typically needs to be refilled.

I compare a retainer to a tank of gas.  Sometimes it takes a half a tank to get to the destination but sometimes it could take 3 tanks.

Is A Flat Fee Better or is a Retainer Better?

It depends on the case in my mind.  You don’t want your lawyer to be paid too much and believe it or not — you really don’t want them to be paid to little either.

In a criminal defense practice there are many cases we handle very routinely where our time is predictable and as the lawyer, we’re willing to take the risk on a flat fee because we know from experience the amount of time we’ll be spending on a certain case falls in within an acceptable range.  Those tend to be misdemeanors like DWI, domestic assault, or theft cases to name a few.

Retainers are a flexible way to handle cases where our time output will be a bit more difficult to predict.  Those would typically be cases like sexual assault, felony drug possession, or white collar charges such as embezzlement or money laundering.  A retainer also assists when we need to pay other client expenses such as investigators or expert witnesses which we’ll need to involve from time to time depending on the case.

The retainer, then, is a good way of making sure the fee is just right on more complex cases where a flat fee may just be far too high or far too low.

*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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