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.

 

Comments Off on Will a DWI Ruin My Life? | Collateral Consequences of a Criminal Record, DWI, Police and Prosecutors, Uncategorized, Vehicular Homicide | Tagged: , , , , , , , , , , , , , , , , | Permalink
Posted by niftybrady

Probation Officer Recommendations

January 5, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Probation officers are often the gatekeepers between their probationers and ultimate freedom.  Probation officers are often asked about recommendations for things like travel, removal of an interlock ignition or deep lung device from a vehicle in DWI cases, or even early release from probation.

When folks visit with me wanting to change something about their probation, it’s very common for them to tell me their probation officer is “not opposed,” or “on board with” or even “recommends” something.

In truth – when I do pick up the phone to ask the probation officer their views I hardly ever get much of anything useful.  I’m usually told the probation department opposes our request to the judge or takes no position on our request to the judge (usually citing department policy).  I can’t remember the last time a probation officer actually told me they supported our motion.

Probation officers also make recommendations for revocations and adjudications.  It’s a bit of a different topic – but remember it is the Judge who ultimately determines what happens in a case, not the probation department.

Probation Officers Don’t Like Making Recommendations

Probation officers work in a bureaucracy. I’ve been in the Army, the District Attorney’s Office, and and have worked alongside government my entire career.  My blog is anything but political but probation departments with their bureaucracies come with some flawed cultures I’ve noticed.

I find there are three cultural problems I’ve seen with probation departments struggle with.  First, there is a climate of fear surrounding decision making.  Personnel are collectively intimidated about sticking their neck-out and making an uncommon or unconventional decision which has any potential at all to backfire.

Second, there is a “default to no” culture at most probation departments.  This means the default answer requests is typically “no.”  The answer is “no” if they don’t understand the request, “no” if they are 50/50 on the request, and especially the answer is “no” if they find a teeny-tiny reason the request could somehow backfire.

Third, if one decision maker is good – then seven are better.  And then they’ll come up with better reasons for saying “no.”

I’m probably jaded, but my view is probation officers simply don’t want to make decisions or recommendations which help their probationers.  They might claim to be in support in closed quarters with no one listening but they often quickly back off any such boldness.  They often claim they are bound not to make recommendations by office policy.  That could be true in some instances but those policies have never limited them from making recommendations against my clients… so I tend to view the policies skeptically.

Often I find a probation officer will claim they are not taking a position – yet they passive/aggressively oppose our requests in open court.  So I never take for granted they are in our corner or neutral on an issue.

I know I’m making many generalizations here.  There are plenty of probation officers I’ve worked with who break this mold and are very forthcoming on their views whether they are helpful or not to my client.

A Probation Officer’s Recommendation Isn’t Everything

It’s okay probation officers if don’t want to make recommendations.  Judges are comfortable making difficult calls granting things the probation department doesn’t like or want.

It’s the Judge who controls terms and conditions of probation – and Judges disagree with probation officers all the time.  Many judges have far more antagonistic relationships with the probation department than you may think.

For these reasons when I’m asked to help someone modify their probation – I just don’t put much stock in what the probation officer reportedly recommends.  If they are in our corner all the better.  But we can still win without it.

*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.

 

Comments Off on Probation Officer Recommendations | Assault, Cannabis, Computer Crimes, crimes against children, Domestic Violence, Drugs, marijuana, Police and Prosecutors, pre trial diversion, probation, Probation Revocation | Tagged: , , , , , , , , , , , , | Permalink
Posted by niftybrady

Can My Lawyer Lie to Me?

January 4, 2021

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Your lawyer can absolutely never lie to you.  Texas Rule of Professional Conduct 8.04(a)(3) says a lawyer cannot, “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  If your lawyer has lied to you then they’ve broken this rule.

The Texas Disciplinary Rules of Professional Conduct is modeled off of other national and state model rules — and I’d be surprised if any other State didn’t have similar honesty or candor requirements.

Instances Where Disciplinary Rules Require Honesty in Specific Situations:

  • A client is entitled to straightforward advice expressing the lawyer’s honest assessment.  Rule 2.01, Comment 1.
  • A lawyer is required to give an honest opinion about the actual consequences which appear likely to result from a client’s conduct – particularly in regard to potential future criminal actions of a client.  Rule 1.02, Comment 7.
  • A lawyer cannot make a legal argument based on a knowingly false representation of law.  Rule 3.03, Comment 3.
  • A lawyer should deal with a non-adjudicative proceeding honestly as if it were a courtroom setting.  Rule 3.10, Comment 1.
  • Lawyers are required to report professional misconduct which raise questions as to other lawyer’s honesty, trustworthiness or fitness to practice law.  Rule 8.03(a).

And there are even more examples in the rules.  As you can see – lawyers have honesty and integrity drilled into their heads in law school and after.

Honesty, Tactfulness and “Bedside Manners”

The attorney-client relationship is also founded upon trust.  Folks who come to my office have to trust me.  Part of developing that trust is showing basic decency and honesty.  If I agreed with every single thing a prospective client told me as far as their opinions, views and concerns about potential outcomes – they’d probably smell a rat.  They know I’m being honest when I dig deeper into their issue which often involves correcting a misimpression they may have about something.

What many lawyers struggle with is not honesty but tact.  Tact is the ability to deal with others on sensitive issues.  “Bedside manners” is another term for tactfulness in my view — referring to a doctor’s ability to deliver bad news in a constructive, compassionate and more meaningful way than just flinging it at the patient.

I’ve spoken with many people over the years who want to ditch their lawyer because their lawyer made them panic unnecessarily.  I always hate hearing that and I often do my best to steer the client back to that lawyer give them another chance.

I’ve learned many lessons over the years about how to constructively deliver news or thoughts my client might not want to hear.  My hope is even though the news may not be the best – it can at least help fortify the attorney-client relationship I have with my client.

Dishonesty

There is just no room for it in legal representation.  It degrades the attorney-client relationship and sets up unrealistic expectations which usually don’t get met.

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

Comments Off on Can My Lawyer Lie to Me? | General Q&A | Tagged: , , , , , , , , | Permalink
Posted by niftybrady

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.

 

 

 

 

Comments Off on What is Cyberbullying and When is it a Crime? | Computer Crimes, Deadly Conduct, Divorce related crimes, Uncategorized | Tagged: , , , , , , , , , , , | Permalink
Posted by niftybrady

When Being Drunk is a Crime & When it’s a Defense to a Crime

January 2, 2021

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

When Being Drunk is a Crime

The rule of thumb with intoxication in Texas is this:  it’s perfectly legal until you’re dangerous.  The threshold changes depending on what you’re doing.

For public intoxication (a fine-only offense) you’re guilty if you’re dangerous to yourself or others just being in public.

For driving while intoxicated it’s if you’re dangerous being behind the wheel of a motor vehicle which weighs a few tons and can go 100 mph.  DWI offenses range from class b misdemeanors (up to 180 days county jail) to 2nd degree felonies for intoxicated manslaughter (2 to 20 years in prison).

When Being Drunk is a Defense to a Crime

Voluntary intoxication is specifically excluded as a defense to a crime in Texas under Tex.Pen.C. 8.04.  Involuntary intoxication may be a defense – but it is extremely rare and difficult to prove.

This topic gets very legally complex very fast – so I’ll do my best to help it make sense.

Intoxication normally goes to undermine the “intent” requirement of most crimes.  If a person is intoxicated, then, they might not have intended to commit whatever crime, right?  The answer would depend on if the person intended to ingest something intoxicating or not — or if they ingested something via fraud or distress rendering the intoxication involuntary.

Adding another layer of confusion is this: not all crimes require intent anyways.  So drunk or not if the person did the criminal act then they are guilty.  Examples would could be statutory rape, selling alcohol to a minor or even speeding.  The prosecution doesn’t have to prove what you intended in those cases – much less whether a person was in their right state of mind.

Probably the easiest way to summarize this is through a few examples:

  • DWI Where drug was unknowingly put into someone’s drink:
    • Not a defense;
    • There is no “intent” requirement in drunk driving cases so even if it were “involuntary” intoxication it wouldn’t matter.
  • Theft where person was impaired due to prescription drugs;
    • Not a defense
    • The intoxication would be considered “voluntary” even if the person didn’t fully understand the impact of the medication or the medication had an unpredictable outcome.
      • The issue is whether the person “voluntarily” ingested the medication.
  • Robbery where a person had a cup of water spiked with an unknown intoxicant;
    • This would be a rare example of involuntary intoxication being a defense;
      • The impairment was caused by fraud;
      • The involuntary impairment negates the intent element required in robbery.

The effect of intoxication in cases can be obvious in most instances and legally complex in others.

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

Comments Off on When Being Drunk is a Crime & When it’s a Defense to a Crime | Computer Crimes, crimes against children, Divorce related crimes, Domestic Violence, Drugs, DWI, Police, Police and Prosecutors, Robbery, sex cases, Theft, Uncategorized, Vehicular Homicide | Tagged: , , , , , , , , , , , , | Permalink
Posted by niftybrady

« Previous Entries
Next Entries »