They Didn’t Read My Miranda Warnings — How Does it Affect My Case?

February 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

I’m often told by people that, “they didn’t read me my Miranda warnings.”  Sometimes this is important and sometimes it is not.

What Are Miranda Warnings?

Miranda refers to a 1960’s U.S. Supreme Court case where a conviction was reversed because the police did not advise a Defendant of his rights prior to getting confessions for several offenses.  I’ll spare you the legal treatise on the topic but just understand it’s a highly complicated area of law.

The Significance of Miranda Warnings

Miranda violations can result in excluded statements, admissions or confessions a person may make while in custody.

Your right to remain silent and your right to a lawyer are generally triggered when you are in “custodial interrogation” and you are being questioned by the police or other governmental agency.  Custodial interrogation is too complicated to go over in this brief article but I will say that a typical traffic stop will not qualify as custodial interrogation under the current law in Texas.

Texas has codified Miranda in Article 38.22 of the Texas Code of Criminal Procedure.  That statute has additional protections above and beyond what Miranda required.  An example of an additional protection is that to be used, an oral confession must be made in the presence of some sort of electronic recording device.

To know how significant a Miranda violation is depends on the facts of the case.  

A hypothetical Miranda violation occurs where someone is handcuffed in the police station under a spotlight with interrogators and admits to a crime.  In that situation, failure to Mirandize someone might result in the confession being tossed-out by a Court.

Obviously real life doesn’t work that way and a Miranda violation may be more subtle or less significant.

Take a DWI for example.  Most of the State’s case will be conduct,  breath, and performance on field sobriety tests.  These things are considered “non-testimonial.”

Even if the police violate Miranda and the person confesses to having consumed alcohol but doesn’t believe they’re drunk — the Miranda violation will have little, if any, impact on the outcome.

Contrast a drug possession case.  In those cases, sometimes the only evidence someone was in possession of contraband such as marijuana are statements or confessions after the drugs are found.  If an officer violates Miranda before a confession is given, the violation may very well change the outcome of the 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.


Punishment for a 2nd DWI in Texas

February 22, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Convictions for DWI’s are like stacking bricks higher and higher.  To recap, a first DWI is a Class B misdemeanor in Texas.  A second DWI is a Class A Misdemeanor.  The punishment range is between 72 hours of jail and 365 days, an/or a fine between $0 and $4,000.

A 2nd DWI means that you’ve been convicted of the first — regardless of how long ago that may have been.

Like a 1st DWI, probation is often the result of a conviction for a 2nd DWI — but clearly there is more jeopardy involved in a 2nd offense.  The maximum probation is 2 years and the probation itself gets stickier.  For example, in Texas we have what is called jail as “a term and condition” of probation.  What this means is that the Judge can send you to jail for up to 30 days as a part of your probation.  The minimum community service for a 2nd DWI is 80 hours.

Additionally, the Judge is required to place an interlock device on your car when you are originally released on bond from jail in the case while you await trial.  You can expect it to stay on during probation with a conviction.

As for driver’s license suspensions — the term of the suspension increases to 2 years (from the max of 180 days).  A person can qualify for an occupational license to assist them in driving to work, however, if the 2nd DWI was within 5 years of previous law enforcement contact involving alcohol, then the person doesn’t qualify for the occupational for 180 days after the suspension begins.  This is what DWI lawyers in Dallas and Collin Counties call a “hard suspension.”  It means no driving for six months.

Also the surcharge is $1,500 per year for 3 years.  Again, the surcharge is $2,000 for a breath test score over 0.16 for 3 years.

In Texas, some County Courts at Law have DWI programs for 2nd time DWI convictions.  In Collin County they have courts with intensive treatment but that offer some incentives to join the program such as lesser fines.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be legal advice.  For legal advice you should consult an attorney.


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.


Top 5 Mistakes When Hiring A Criminal Defense Attorney Countdown — #1

February 17, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

This week I’m counting down the top 5 mistakes people make in hiring a criminal defense attorney.

#1.  Hiring a lawyer that pleads everyone guilty.

I approach every case looking for a way to win – not why we should lose.  Sometimes the paths to victory are many, sometimes they are wide, and sometimes there is just a sliver of hope.  But the slivers are there if you look hard enough. I consider pleading guilty a last-option in most instances in Texas state courts in Collin and Dallas counties.

This means I set a decent percentage of them for trials or motions to suppress.  But there are lawyers who advise their clients to plead guilty virtually every time.

I rarely question another lawyer’s professional judgment.  And let’s be straight – pleading guilty or not guilty is exclusively the client’s decision.  But a lawyer’s advice typically plays a very heavy part.

I struggle to think of reasons why a particular lawyer simply never puts the State of Texas to task.  Maybe they’re intimidated.  Maybe they lack confidence.  Maybe they’ve made the immature mistake of sitting in judgment on their client if the client used poor judgment or made a mistake.

Whatever the case may be – trial is an important option and a constitutional right.  It should at least be discussed and considered.  Not having that option severely restricts your chances for success.

The cure for this is simple.  When interviewing your lawyer you should ask them how often they take cases to trial?  When was the last time they tried a case?  How many cases like yours have they tried in the past couple of years?

The answers will be revealing.  I’m not suggesting the “tougher” lawyers are better – but you should consider hiring someone that doesn’t take options off the table and who isn’t afraid to pull the trigger and take the state to trial.

*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.


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!