Getting Criminal Charges Dismissed

September 12, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Criminal cases can be like snowballs — as they head downhill they can get harder to stop and they pick up momentum.  An experienced and skilled criminal defense lawyer knows when, how and why police or prosecutions will want to dismiss criminal cases.

The Top of the Mountain

Using our snowball analogy, the beginning of the criminal case (or the top of the mountain) is generally where the police get involved.  Frequently, that may be a traffic stop in the case of a DWI or drug seizure, or that can be where someone makes a report to police and police detectives get involved investigating an assault (as an example).

Will the police drop the case?  Perhaps.  It obviously depends on the type of offense and other factors weigh in such as the attitude of alleged victims and/or public pressure.  On DWI’s, for example, the police are under a great deal of pressure to pursue those types of cases.  Police agencies are reviewed regularly by MADD and other Police agencies actually apply for grants for the express purpose of prosecuting DWIs.  Those groups don’t like hearing that the police are dismissing charges on DWI arrests.  You can expect many agencies to have policies in place that don’t allow them to not-persue charges after a DWI arrest.

On other cases that the police investigate, it may be possible to either convince the police that the case isn’t worth pursuing.  Always have a lawyer when negotiating directly with law enforcement agencies!  Certain rules such as the attorney-client privilege and other rules of evidence protect you when your lawyer is dealing directly with law enforcement — not to mention an experienced criminal defense lawyer knows how to deal with police better than you.

Some police agencies will resist filing criminal cases on people who assist them in further investigations.  The most classic example is with narcotics and drug enforcement.  Again, having an attorney assist you in these types of negotiations can help assure that you are protected.

Down the Hill

Eventually, the case will make it’s way to the District Attorney’s office.  Once it gets there the “snowball” can be harder to stop.  Prosecutors have an affirmative duty under the Penal Code not to seek convictions — but to see that justice is done.  So they can and do dismiss cases or sometimes they’ll reject cases even though the police may want to prosecute.

Prosecutors control the Grand Jury process in felony prosecutions and often they will allow the defense to submit information (called a Grand Jury Packet) to the Grand Jury attempting to persuade them not to issue a true bill of indictment.  While the prosecutor doesn’t have direct control over the Grand Jury — if the Grand Jury issues a “no-bill” or won’t indict a person for a felony — it can basically have the same effect as a dismissal.

After the Case is Charged by Indictment or Information

Once the State files an Information (in Misdemeanors such as possession of marijuana or Driving While Intoxicated), or they attain an indictment in a felony, then getting a prosecutor to dismiss becomes even more difficult — but again — not impossible.

Many prosecutors in Texas can be very resistant to dismissals and often times will try weaker cases they think they should lose rather than appear weak on crime.  Again, the unique facts of every case govern the State’s willingness to dismiss charges short of a trial.  Some charges, like DWI and Assault/ Family Violence cases are dictated by policy in Collin County — and the Assistants District Attorneys need special permission from their superiors for dismissals.

Often a dismissal at this juncture is a result of an attorney that hustles to build a case as to why the prosecution needs to dismiss the case in the best interests of justice and/or because he convinces the prosecutors they will not only lose the case — but lose face before the citizens.

*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 any situation you should consult an attorney directly.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

How Severe is a 1st DWI?

September 2, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

A first DWI is classified in Texas as a Class B Misdemeanor.  The punishment range is between 72 hours in jail and/or a fine not to exceed $2,000.

The main difference between a Driving While Intoxicated charge and any other Class B Misdemeanor (such as possession of a small amount of marijuana), is that there is tons of red tape and other administrative penalties that come along.

First is that if you’ve been arrested for DWI in Texas, you’re probably also facing a driver’s license suspension for either refusing the breath test or taking the breath test and blowing over a 0.08.  The suspension is not automatic (even though law enforcement likes to think otherwise), but it’s still an additional headache nonetheless.  For a 1st DWI arrest, the driver should be eligible for what is known as an occupational license which allows them to drive during the suspension period for work or essential household purposes in the event the license is ultimately suspended.

Next is that if you’re convicted of a DWI, then the Department of Public Safety charges you an annual surcharge for 3 years in order for you to maintain your driver’s license.  A generic surcharge is $1,000 per year while if your breath test is higher than a 0.15 the surcharge goes to $2,000.  For a second offense the surcharge is $1,500.  The surcharge program has been the source of much controversy lately but unfortunately you still have to deal with it if you’re convicted.

There is no deferred adjudication for Driving While Intoxicated cases in Texas.  People accused of selling drugs to kids and worse can get deferred — but not on DWI cases.

More recently, Texas laws require Judges to order “Interlock” or “deep lung devices” on cars if the accused is convicted and had a blood alcohol concentration of greater than 0.16 while that person is on probation.  The devices aren’t free and the reporting requirements that come along with the devices can be fairly time-consuming and cumbersome.

Now the good news — DWI cases are very fightable and statistics show even in Collin County that people charged with DWI have a lower conviction rate at trial than almost any other offense.  Also, first-time DWI cases rarely result in jail for the accused an instead get probation even if convicted.

*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 case you should consult an attorney directly.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Texas Perjury Law

August 11, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Texas Penal Code Chapter 37 covers perjury. Perjury, like any other type of charge, has differing levels of severity depending on the circumstances. The degree of offense ranges from a Class A Misdemeanor to a Third Degree Felony. Punishment level aside, Perjury is obviously a crime of moral terptitude which carries with it it’s own set of stigmas and consequences. Make no mistake — a perjury allegation is ridiculously bad news!

Section 37.02 says,

“(a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:

“(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

“(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

“(b) An offense under this section is a Class A misdemeanor.

This section refers to documents that you may be asked to execute under oath from time to time. In case you’re curious, Chapter 132 of the Civil Practice and Remedies code allows prisoners in the Texas Department of Corrections to file documents as if they were under oath by reciting a declaration… Probably because they don’t have many notaries working in prisons.

Aggravated Perjury is a Third Degree Felony and is under Section 37.03 which reads,

“(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

“(1) is made during or in connection with an official proceeding; and

“(2) is material….

Whether a statement is “material” is for the judge to decide. 37.04 covers materiality and says, “…A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding… It is no defense to prosecution under Section 37.03 (Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.”

There is a defense to aggravated perjury and that is through retraction. retraction must be “before completion of the testimony at the official proceeding; and before it became manifest that the falsity of the statement would be exposed.”

Several other notes about perjury and aggravated perjury… No lawyer can ever assist someone in the commission of any offense, must less these offenses. You should RUN (not walk) away from any lawyer that suggests or insinuates otherwise.

Also many trials in criminal and civil law produce inconsistent statements from one witnesses (in varying degrees), or from multiple witnesses with differing accounts. Criminal prosecutions don’t automatically follow. It is up to the prosecuting agency to determine whether perjury has actually occurred and that the case is something worth pursuing.

If you are facing accusations of perjury or aggravated perjury, you should involve criminal counsel immediately. It is an extremely serious charge and can put a major crunch in your work and career plans!

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 you should contact an attorney directly.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Are There Depositions in a Criminal Case in Texas?

August 5, 2010

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

(972) 562-7549

texasdefensefirm.com

Knowledge is power.  A good criminal defense lawyer will want to know as much of the State’s case as conceivably possible.  Most of the time that will probably only be through the police reports, an independent investigation, or what witnesses will tell you voluntarily.  Depositions in civil cases are common but depositions in criminal cases in Texas courts are extremely rare.

Depositions serve two main functions; (1) discovery — or learning the facts of the case; and (2) to nail down a witness’ version of events for later impeachment.  Insurance companies and civil lawyers know all to well that not many people give identical versions of events on multiple occasions.  They get as many witness statements from the same witness as possible to exploit inconsistencies or weaknesses.

Texas Code of Criminal Procedure 39.02 allows a defendant to petition the Court for a deposition if the defendant can show “good reason” for needing the deposition.  It is such a rarity that most trial judges probably won’t see the utility in allowing a deposition of a police officer though.  In all likelihood, depositions in criminal cases are reserved for instances where a witness may not be available later for trial.  If anything, the law allows the prosecution just as much or more leeway with deposing a witness or an alleged victim.  Section 39.025 requires that if the alleged victim is over 60 years old or disabled then the deposition must be taken by the prosecution no later than 60 days after the deposition is requested.

All is not lost for the accused though.  There are a few different mechanisms that allow deposition-like examinations of a police officer prior to trial. An example is an Administrative Law Review (“ALR”) in a DWI case to determine whether a driver’s license should be suspended or denied.  Another example is what is known as an “examining trial” in felony cases to determine if the State has probable cause to hold someone in jail accused of a Felony prior to presentment to the Grand Jury.  These are both instances where an officer can be sworn-in under oath with a record that can be used later.  A good criminal defense lawyer knows how to seize these opportunities for discovery.

*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 directly.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Recent Changes to Miranda Rights and How they can be Waived

August 3, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

This Summer the U.S. Supreme Court has made a handful of rulings chipping away at Miranda rights.  Most notably, in Berghuis v. Thompkins the Court ruled that an accused must “unambiguously” invoke his right to remain silent to garner the protection of Miranda.

In Berghuis, the Court held that a Michigan man who was given Miranda warnings sat in silence for three hours while police were present peppering him with questions did not “unambiguously” assert his Miranda rights and therefore waived them when he finally cracked three hours later by admitting that he prayed for forgiveness for the shooting.

In Plain Language

To recap, Miranda rights are necessary because our system of justice is adversarial.  At some point, a neutral police investigation can change into a criminal prosecution which is anything but neutral.  The problem for defendants is that the police make this choice — and often won’t tell the accused.  This can give the police an extremely unfair advantage in pressuring statements and confessions out of criminal suspects.  An accused may give a statement or a confession thinking they’ll avoid criminal prosecution by coming clean — or may tell the police what he thinks they want to hear thinking it will persuade the police to drop the “investigation” when the truth of the situation is that the police are planning their court-room strategy.  In any event, an accused has a 5th Amendment right to remain silent and it’s conceivably triggered when the proceedings become adversarial (in Texas when the person is in custody.)

Everyday Practice

Unfortunately, many police officers are either oblivious to your rights or see your rights as merely an obstacle they can hurdle, slither-around, or something to which the can just give lip-service.  The facts of Berghuis are not uncommon with confessions in criminal cases.  Officers routinely play all sorts of different games when it is clear the suspect isn’t willing to cooperate.  Sometimes the officers can pressure the accused like a used-car salesman trying to make a sale or sometimes the officers can use law-enforcement techniques such as deception.  In any event, merely because someone remains silent or asks for a lawyer doesn’t automatically mean the questioning is necessarily over — even though that is what should happen.

The Rationale Behind Berghuis

Justice Kennedy writing for the 5-4 majority in Berghuis wrote, “If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation.  The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.”

I added the italics in the quote from Justice Kennedy above for the reason that it exposes, in my opinion, his lack of understanding of the every-day practice of criminal law and police tactics.  First of all, very rarely does an accused truly understand Miranda with the same depths as even the police-officers much less know how to “unambiguously” know how to assert them.  Often an accused may ask officers follow-up questions about Miranda or give a luke-warm or half-hearted response that they don’t want to answer questions.

Secondly… Justice Kennedy dangerously assumes the police would have ended the interrogation after the “unambiguous” assertion.

Finally, it allows the police to be the judges of what does or does not constitute an “unambiguous” assertion of Miranda rights by an accused.  As a guess, not many police officers that consistently undermine Miranda any-way will give the accused the benefit of the doubt if they just “sort of” invoke Miranda and the accused could be drilled until the police get what they’re after.

Is Miranda Dead?

No.  As with all Supreme Court rulings, only time will tell the true impact of Berghuis.  But make no mistake — police may interpret this ruling as a green-light to ignore people’s attempts at invoking their right to counsel.

*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 situation you should directly consult an attorney.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Next Entries »