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.

 

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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.

 

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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.

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Domestic Violence Charges – Blog 12:  The Consent Defense (i.e. Mutual Combat)

December 23, 2020

By McKinney Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Dallas Cowboys at “The Star” in Frisco put on their pads and helmets on a daily basis, go out onto a football field, and routinely intentionally, knowingly or recklessly cause bodily injury to one another.

We all know that’s not assault because when you put the pads on – you’re agreeing to allow another person to inflict pain.  The contact is welcomed.

This is the law school example of the consent defense to assault and it’s my topic today for my continuing series about defending domestic abuse cases.

Police refer to this as “mutual combat” but legally there is no real term for this in Texas.  The law in Texas calls it consent.

The Legal Definition of “Consent”

Use of force against another person isn’t criminal if the other person “effectively consented” or the person reasonably believed the other has “effectively consented.”  The conduct involved must be limited to bodily injury because a person cannot consent, as a matter of law, to aggravated assault (serious bodily injury).

“Effective consent” is defined in the negative.  We know what it’s not… Consent isn’t effective by reason of youth, mental disease or defect or intoxication.  Consent also isn’t effective if it was induced by force, threat or fraud.

So a person can be acquitted of assault — including domestic violence assault — if the jury is instructed on “consent” and the state fails to show beyond a reasonable doubt (1) the complaining witness did not ‘effectively consent’ to the assault and (2) the assault did not cause or threaten to cause serious bodily injury.

How Could this Possibly Apply in a Family Assault Situation?

An example I’ve given to clients countless times is this:  ever see two people stand toe to toe either in a bar or the high school gym?  What are they communicating to one another?  The answer is  BRING IT ON.  If I physically get in another person’s face, stare them down, and dare them to throw a punch at me — my view is I’ve invited physical contact.

And remember – what legally makes domestic assault is the affirmative finding of family violence done by a judge after either a person has plead guilty or a jury has convicted them of assault.  So all the legal defenses to assault are available to a person regardless of gender or family status.

Also many intimate relationships are reciprocally violent.  That is some couples fight one another on a regular basis and both partners are regularly the aggressor, the victim, or it’s indistinguishable.

Given this backdrop – the bar or schoolyard scenario can happen in a living room too.  It’s dysfunctional to be sure… but some couples engage in mutual combat.

Words enough cannot legally trigger self defense.  But words combined with physical manifestations of agreed contact are enough to trigger consent.

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

 

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Domestic Violence Charges – Blog 11:  Self-Defense

December 22, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Self-defense is the lynchpin of many, many domestic violence cases.

You have the right to defense yourself from an assault in Texas.  The law makes no distinction about gender, age or mental disability in the area of self defense.

Read here for an index of defending domestic violence cases topics.

Texas Law on Self-Defense

Here is Texas Penal Code 9.31(a) which I’ll dissect after you give it a read:

…a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

“Immediately Necessary”

The law requires when someone defends themselves the impending attack on them must be imminent – not some time in the near or distant future.

“Use or Attempted Use of Unlawful Force”

The term unlawful force here is crucial.  Unlawful force can be defined as any unwanted, offensive or provocative contact.

Police, prosecutors and even defense lawyers make the common mistake in assault cases of assuming merely because someone inflicted more damage in an altercation – that person must not have been exercising self defense.

Also, this statute is mainly in the mind of the defendant.  Did the defendant “believe force” was “immediately necessary”?  Even if defendant misread the situation, they could still argue self-defense if in their mind they believed they were defending themselves.

Some common/ potential examples of self defense in domestic abuse cases:

  • Accuser shoves defendant and scratches defendant’s face – defendant pushes back knocking accuser onto the floor;
  • Accuser screaming and poking defendant in the chest (unwanted or provocative contact) – defendant grabs accusers arm causing pain;
  • Accuser is intoxicated and throws a weak punch at defendant – defendant braces the accuser from throwing any more punches and in doing so causes pain in forcing them to the ground;

Reciprocal Intimate Partner Violence

No discussion of self-defense is complete without the mention of a concept known as “reciprocal intimate partner violence” or “RIPV.”  It is a term used by Ph.D’s who have studied domestic violence and believe  much of the dysfunction is reciprocal – meaning both partners have been the aggressors at times and the victims at times.  It’s a concept I’ll discuss at length more during later blogs in this continuing series on domestic violence cases – but it is important to understand mutual combat situations are very common in domestic assault cases.

What Degree of Force is Appropriate?

Self-Defense allows defense within reason and the defense must be proportional.  Someone cannot kill another person for spitting on their face.

When someone is defending themselves from unlawful contact, they can cause bodily injury in response (infliction of pain or discomfort).

When someone is defending themselves from serious bodily injury or death (impairment of a life function or major organ), they can in turn use deadly force. Tex.Pen.C. 9.32.

When Self-Defense Isn’t Allowed

The law does not allow someone to provoke the accuser into committing an assault only to attack them in return.  The law also doesn’t allow someone to defend themselves because of words alone.  A person can also not lawfully make a self defense claim if they are in the commission of a crime greater than a traffic-level offense.

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

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