How Double Jeopardy Works

March 4, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Double jeopardy comes from the 5th Amendment to the U.S. Constitution which holds in part, “…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

Double jeopardy can be an extremely complex topic.  The easiest way to think about it is once you are acquitted of a charge, you can’t be prosecuted for the same charge again. The prosecutors who represent the government are like anyone else before the Judge.  They get their day in court — but they don’t get it again and again and again until they win.

What makes the issue so confusing at times are the different concepts behind what constitutes an acquittal for example.  The prosecution may dismiss a case but if they do so before jeopardy is said to “attach” in a particular case (typically when a jury is sworn — or in a trial before a judge — when the trial begins), the prosecution can simply refile the case if they are within their limitations period.

Also many factual circumstances could lend themselves to prosecutions of different offenses.  Crimes have statutory elements which must be proven by the prosecution.  The elements for one crime might be completely different from another crime which arose from the same situation.  Merely because someone was prosecuted and acquitted of one charge doesn’t mean the other charge can’t then be pursued by the state.  Whether subsequent prosecution is precluded by double jeopardy might depend on the over-lapping nature of the elements of given charges.

The vast majority of times double jeopardy issues are simple.  If someone is found not guilty for driving while intoxicated, marijuana possession or assault then virtually always the case is closed.  On occasion double jeopardy issues can arise, though.  When they do it’s best to speak with a lawyer about what the State may or may no do to pursue a particular 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 on any issue you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not considered privileged or confidential.

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Posted by Jeremy Rosenthal, Esq.

I Just Got Arrested for DWI. Is My Texas Driver’s License Still Valid?

September 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Yes.  If you have just been arrested and released for a DWI in Texas, then your Texas driver’s license will not be suspended for 40 days from the date of your arrest.

You should be given several documents during a driving while intoxicated arrest — usually two yellow carbon copies.  One is your statutory warning about the consequences of refusing or taking a breath or blood test (DIC-24) and the other is your temporary driving permit (DIC-25).

The DIC-25 states in the fine print, “This permit is valid for 40 days from the date of service shown below.  If you request a hearing, this permit will remain in effect until the administrative law judge makes a final decision in your case.”

English translation — you still have a drivers license.  If you appeal the suspension (you have 15 days to do this), then the DIC-25 is your driving permit until your appeal is ruled on by an administrative law judge.  If you do nothing, the yellow sheet is your driving permit for 40 days.  Either way, you are perfectly okay to drive if you have a Texas license.  At least for now.

Normally if you take the breath test and fail or if you refuse the breath test, the arresting officer confiscates your license on the spot. Again, this doesn’t mean you can’t drive.  You do, however, have to pay attention to the fine print.

If you take a blood test, then normally they don’t take your drivers license because they don’t know if you passed or failed the test.  In those instances, you have to check the mail for a letter from DPS indicating whether your blood result has triggered a possible suspension.  If it has, then you still have time to file your appeal.

If you’re in the situation where you were just arrested for driving under the influence within the past few days, then you’re still in a position to maximize your full options with regards to your driver’s license.  You can appeal the officer’s decision to ask you to take the breath test and you can get an occupational driver’s license in the event your license is ultimately suspended.

Unlike a fine wine, your options don’t get better with age.  So now is the time to get into decision mode.

*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 about any issue, you should consult an attorney directly.  Communicating to the attorney through this blog does not constitute an attorney client communication and nothing communicated herein is considered privileged.

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Posted by Jeremy Rosenthal, Esq.

Mens Rea — The Guilty Mind

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here is some legal theory or law school 101 if you will.

Something every first-year law student learns in criminal law is about the concept of “Mens Rea” which is latin for “guilty mind.”  When a guilty mind is combined with a “guilty act” (or actus reus), then under common law, a crime has been committed. Most, but not all, crimes today have a mens rea requirement.

For example, to prove the crime of theft the prosecution must show the guilty act of appropriation of property (actus reus) plus the intent of the taker to deprive the owner of the property without consent (mens rea).  An example of a crime where there is no mens rea is strict liability crime — like statutory rape or what is known as an inchoate crime which is a crime of omission — like failure to stop and render aid.  Inchoate crimes typically require a special relationship between the victim and the accused. Modern criminal law has even varied the levels of mens rea.

Crimes enacted by code in Texas and the U.S. Government can require greater or lesser mental states for offenses.  Some offenses such as Arson are called specific intent crimes — meaning that the actor had to specifically intend the result of the crime.  Other crimes have lesser mental states meaning that if a person committed an offense “knowingly” or even less, with “criminal negligence” then they are guilty.

An example of a crime in Texas where criminal negligence is sufficient to convict is selling alcohol to  a minor.  In that type of a case, the actual intent of the defendant need not be proven as long as the jury believes the defendant acted with “criminal negligence.” The charging instrument (an information in a misdemeanor case or an indictment in a felony) will detail which of the mental states is being alleged.

Any and every criminal defense lawyer should read the charging instrument in your criminal case.  If the state proves the greater mental state then they have, as a matter of law, proved the lesser.

Discussing legal theory is like pulling the loose end of a sweater.  We could discuss this topic all day and all night.  If you’re interested in more discussion, you can read more here or here.

*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 specific legal advice about your case you should consult an attorney. 

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If I Am Guilty, Then I Have to Plead Guilty, Right?

March 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Wrong, wrong, wrong!

People say this to me all the time.  I honestly admire them when they do.  But here’s the thing — you have a right straight from our Constitution to plead not guilty and force the state to prove your guilty beyond all reasonable doubt.  If they can’t you are entitled to acquittal regardless of what you did or didn’t do.  People who have a problem with that also have a problem with Thomas Jefferson, John Adams, and our other founding fathers.

Here is the flaw in the “I have to plead guilty” attitude:  Just because you’re being remorseful doesn’t mean the law and the prosecutor will be fair.  The State of Texas doesn’t have a phone line to the almighty so they can together decide what is and is not justice (regardless of the attitude of many of their prosecutors and policemen).

Take a DWI arrest in Collin County for example.  The person is taken to jail which is like a punch in their gut.  They have an embarrassing scene on the roadside, and then they have friends or loved ones help them get out which is also humbling.  For many, that experience alone may be punishment enough.

The state takes the position that you need to be branded with this forever and they’ve put a price tag on it designed to be as nasty a hardship on your wallet as they can possibly inflict.  Not only that, some politician down in the polls 15 or 20 years from now may decide to re-punish you with additional red-tape to prove they are “tough on DWI”  (and yes, there have been laws passed this last decade which affect the rights of those convicted in the past).

Also don’t forget you don’t have to prove your innocence at trial.  Even if you are guilty, the state often can’t prove it or they make a legal mistake entitling you to acquittal.  That is their fault and not yours.  Again, you’ve done nothing shameful or dishonest by pleading not guilty.

Merely because a prosecutor or policeman says pleading guilty equals justice doesn’t make it so.

*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 directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.