Top 5 Biggest Mistakes People Make After They’re Arrested For DWI

November 8, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

1. Not consulting an attorney.

DWI laws in Texas are out of control. Many times people feel that if they made a mistake — that their prior good record combined with a rational prosecutor and Judge mean that they won’t be treated unfairly. Even if someone is lucky enough to draw such people on their case — the legislature has tied the prosecutor or Judges hands! There’s no deferred adjudication for DWI and related offenses. There are mandatory sur-charges costing thousands of dollars – and that’s just for starters!

The plain fact is that a DWI arrest is more severe than it looks. A skilled, experienced advocate is can assist in evaluating and fighting a DWI arrest.

2. Ignoring the Case

Being arrested can be a very humbling experience. Drunk driving arrests, though, need to be addressed quickly. There is virtually always a drivers license suspension which results from either a breath test refusal or failure and those deadlines run quickly. Unfortunately I’ll see people in denial over their arrest, but important rights can be lost with unnecessary delay.

3. Making Hurried Decisions

Again, an arrest for DUI, DWI or drunk driving is an extremely traumatic event. My experience is that over time, attitudes about the arrest change. It’s not uncommon for me to visit with someone that wants nothing more than to accept the charges and any and all punishment the State has in store for them — only to change their mind down the road based on changed perspective… And certainly the reverse happens too. I always encourage people arrested for DWI to “let the dust settle” in their lives before deciding to hire a lawyer. While it is important to act quickly with a dwi arrest, it’s bad to sacrifice common sense too.

4. Taking Legal Advice from Non-Lawyers.

There are all sorts of “experts” on DWI cases that don’t have any interest in your outcome. Yet many of these ‘experts’ still insist on giving you legal advice. A lawyer is professionally and ethically on the hook when they agree to represent you. Jailers, the bail-bondsman, or a court clerk who may only see you once in their lives may have a decent understanding of the legal machinations of how a DWI works… But getting 40, 50, or 60 percent correct information is a great way to make a bad mistake.

5. Losing Your Head.

I tell my clients that it’s important that they keep their cool. Some cases take a good amount of time to be resolved and that it doesn’t do anyone good to lose sleep over something that works at the speed of government. Many people drive themselves crazy with angst and worry, but good decisions aren’t made that way.

*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 any specific situation should directly consult an attorney.


“DWI Lite”

October 19, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Here’s an interesting commentary on a new proposal that may make it’s way to Austin next year.  The concept, dubbed by the media  “DWI Lite,” basically criminalizes driving with even less alcohol in your system than what would normally be a DWI.  They call it between 0.05 and 0.08 bac.

Of course they don’t have admissible breath tests on the side of the road which will mean that an officer can arrest virtually anyone that has alcohol on their breath.  And I’m curious to know… are there studies out there that suggest that the dangerous drivers are the ones between 0.05 and 0.08?  I truly don’t know if there is or if there isn’t, but it seems to me that the legislature could be “cracking-down” for the sake of… well… cracking-down.

Also what is ironic to me is that if you hear prosecutors during jury selection, examining witnesses, and during jury argument — they’re good at convincing people that 2 beers = drunk driver as it is.  The legal standard is, “not having the normal use of your mental or physical faculties” and they’ve argued for years that even the slightest loss of mental or physical coordination means someone is guilty.  By my logic, wouldn’t that make this new idea for “DWI Lite” redundant?

*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 on an specific matter you should directly consult an attorney.


Dallas Morning News DWI Series

August 16, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

texasdefensefirm.com

The Dallas Morning News is running a series of articles about DWI’s as they relate to the criminal justice system August 14, 15, and 16, 2010.  You can read today’s article here.

Regardless of whether you agree or disagree with the article’s point of view it is informative nonetheless as the staff authors Diane Jennings, Selwyn Crawford and Darlean Spangenberger have clearly done their homework in interviewing prosecutors, judges, and criminal defense lawyers alike.  What I think they’re missing is that this problem has 10-sides… not just 3.

My chief complaint (this is MY blog after all), is that both yesterday’s and today’s article assume anyone accused of an intoxication offense is, in fact, guilty.  From that starting point, it is understandable then that it appears anyone and everyone that gets a result short of a full-fledged flogging is somehow cheating the system.  Let’s not forget this is a county known for sending innocent people to prison.

I am glad to see the concept of deferred adjudication enter the conversation, however, as one of the main problems with the Courts dealing with DWI’s is the all-or-nothing position people accused of DWIs face on a daily basis.  Giving the accused a middle ground gives them something to lose by fighting the charges and in my opinion would be a major step towards clearing the dockets.

One suggestion by Richard Alpert (a Tarrant County Prosecutor known state-wide as an authority on prosecuting DWI) suggests in today’s article that if the legislature is going to consider deferred for DWI cases that they at least be able to enhance subsequent DWI’s as if the previous deferred was a conviction.  Sadly, this is exactly what makes deferred adjudication a trap-door in other cases.  Essentially it would be deferred in name only — and as I joke with my clients — it only feels good to get deferred.

But I digress… if you’re interested in the topic, the DMN series is a decent enough read.

*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 should be considered legal advice.  For legal advice for any specific situation you should contact an attorney directly.


The Presumption of Innocence

July 5, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The presumption of innocence in the United States stems from the 5th, 6th and 14th Amendments to the Constitution.  See Coffin v. United States, 156 U.S. 432 (1895).

Texas Code of Criminal Procedre Art. 38.03 is called  the “Presumption of Innocence” and states, “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.”  Also in a criminal trial, the judge and prosecutor have legal duties not to impair the presumption of innocence.  See Tex.Code.Crim.P. Section 2.01 and 2.03.

Despite these seemingly straightforward concepts and what seem to be airtight safeguards — studies have shown that the presumption of innocence is widely ignored and/or misunderstood by jurors.

What is worse is that clever prosecutors manipulate the presumption of innocence during phases of a criminal trial such as jury selection and closing arguments.  The twists, turns, and spin the prosecutors are trained to use is so subtile and seemingly docile — and often they themselves aren’t even aware they are doing it in the first place.  What is so unfortunate is that as the studies to which I’ve linked above suggest — jurors need very little persuasion to either ignore the presumption of innocence or badly misconstrue it.

A common tactic I’ve seen prosecutors use in felony trials such as theft, burglary or the distribution of drugs cases is to suggest to the jury panel that if there is little evidence of guilt in the case — it is merely because the accused is ‘good at being a criminal.’  The prosecutor suggests that their case is weak because it is the criminal defendant “that chose the time, place, and witnesses to the crime.”  In other words the person on trial is a criminal according to the State — whether they can prove it or not.  Clearly that is opposite of the presumption of innocence which suggests no evidence at all means the State hasn’t met their burden of proof and the accused should be acquitted.

Although most prosecutors won’t admit to this — one of the aspects they find the most frustrating about DUI and DWI trials is that the person on trial ACTUALLY GETS the presumption of innocence from jurors with similar backgrounds and experiences as the accused.  As this abstract readily points out — jurors need very little encouragement to allow pre-existing biases and prejudices wipe-away the presumption of innocence with the concept of congruence (which I understand to mean that once the jury learns certain background information of an accused person — such as occupation, age, income level, or race; they then draw negative inferences about the person in general).

With a DUI or DWI trial, the jury can readily identify with the defendant and so there is probably less chance the jury draws negative inferences from the accused’ profile — and the greater chance the accused is actually presumed innocent.

A common tactic used by prosecutors in a driving while intoxicated trial is to ask prospective jurors whether the person on trial “looks like a drunk driver” or “what does a drunk driver look like?”  Of course, the prosecutor readily points out that ANYONE can be a drunk driver (and it’s implied that even though this person looks innocent — they might be a criminal.)  Again, while prosecutors see this as an innocuous question — I see an underhanded swipe at the presumption of innocence.

The bottom line is that when hiring a criminal defense lawyer in Dallas or Collin County, you should select a trial lawyer that not only understands the presumption of innocence, but will fight the State’s underhanded attempts at undermining what is one of the most critical cornerstones of American justice.

*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 for any specific case you should consult an attorney directly.


Which DWI Charges are Felonies and Which are Misdemeanors?

February 23, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

All the “tough-guy” talk from law enforcement about DWIs in Dallas and Collin Counties in Texas has created a lot of confusion.

Most DWI Arrests Are Misdemeanors

Most are relieved to hear a first arrest is a Class B misdemeanor and a second is a Class A.  But when do DWI’s become felonies?

Several ways.  What makes the identical act of driving a motor vehicle in a public place while intoxicated (which is normally a misdemeanor) a felony is generally additional or surrounding factors.

It is important to note that every jail term I describe below may be probated in certain circumstances.

Driving While Intoxicated With a Minor

DWI with a minor 15 years-old or younger is a State Jail Felony punishable between 180 days and 2 years jail and/or a fine not to exceed $10,000.

Driving While Intoxicated (3rd Charge or More)

If you’ve been convicted of DWI two times before, then the third DWI is a 3rd degree felony carrying a possible prison sentence between 2 and 10 years and/or a fine not to exceed $10,000.  Additional convictions pile-up like bricks with the enhancements getting progressively harsher.  For details on specific enhancements for a 4th DWI or greater, consult an attorney.

Intoxication Assault

Intoxication assault is typically a non-fatal accident where someone is seriously hurt or disfigured and is a 3rd degree felony.  The prosecution must prove not only that the defendant caused the accident, but the accident was caused by the intoxication — and that a person suffered “serious bodily injury.”

Intoxication Manslaughter

Intoxication manslaughter is the same as intoxication assault, except that the accident causes someone to die.  It is a second degree felony carrying a sentence between 2 and 20 years prison and a fine not to exceed $10,000.

The Texas Legislature has allowed for the “stacking” of punishments for intoxication assault and/or manslaughter.  What this means is that if there is more than one victim (hence multiple counts), those punishments can be added together whereas most felony punishments run concurrently (or together).

Enhancements for felony punishment can be complex in Texas, so it’s essential to discuss the specifics with an attorney.

*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, please consult an attorney.