Collin County Deferred Prosecution Program Update (2/10/11)

February 10, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

I recently blogged on some of the anticipated changes to the Collin County Deferred Prosecution Program that were in the works with the new District Attorney’s administration.

One of the changes that I’ve recently learned about is that the DA’s office is not necessarily putting an age limit on who is eligible for the program.  Previously, a person over 21 would not be eligible for the deferred prosecution program.

This confirms the new administration’s willingness to be flexible and to do the right thing in each and every case.

More updates to come.

*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 particular situation, you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Should I Take the Field Sobriety Tests?

February 5, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

No.

I’ve put a lot of time and thought into the answer and here’s why I’ve ultimately come to that conclusion:  because experience tells me most of the time the officer has already made his decision to arrest you by the time he asks you to take the field sobriety tests.  So no matter how well you do, you’re not being graded by a fair judge.  You’re being graded by someone who already decided you’re going to jail.

If you’re reading this because you were arrested for DWI and you took the field sobriety tests — don’t feel bad at all about your decision.  It’s a common one and there are plenty of decent reasons to submit to them.  I just feel that in totality — the bad outweighs the good — and I’ve had a lot more time and experience with these cases than you had before you were asked to take the tests!

Most people who submit to field sobriety tests do so for two main reasons.  First, is that they don’t know they have the right to refuse.  In Texas, a person absolutely has the right to refuse.  Second, the person thinks they’ll somehow show the officer that they’re okay to drive (again, what they don’t know is changing the officer’s mind is an impossible task).

Police play into the second reason very heavily.  Remember, deception is a legitimate tool of law enforcement.  Police officers have extremely honed skills at manipulating people to comply with their requests — even though the citizen has no obligation to do so.  Field sobriety tests are a classic example.  Here’s another example — ever been asked by a police officer that just pulled you over if you know why he pulled you over?  It’s a game of “gotcha” and now you can’t fight the ticket if you answered!  When an officer asks you to take the tests to see if “you’re okay to drive,” it may sound like he’s thinking of letting you go — but odds are that it just sounds that way!  Only the officer really knows — and you have no way of knowing if he’s already called the tow truck for your car.

There are some down sides to refusing field sobriety tests too.

First is that you’re basically daring the officer to take you to jail.  Most will take you up on it.  You’re basically gambling that even if he takes you to jail that you’ll be able to beat the DWI in court by not providing any evidence knowing the State has the burden of proof.

Second is that you’re possibly making yourself the” bad guy” in front of the jury by not complying with the police.  Most jurors ask themselves whether they would take the tests or not and even though most don’t have well informed opinions, most would take the tests… but ultimately, being the “bad-guy” can be overcome.

Third is that there’s always the chance that you’ve run into a policeman that hasn’t made up their mind.  It’s probably the exception and not the rule — but it does happen.

Finally is that jurors put more stock in how you look generally on the video than how the officer testifies you did on the field sobriety tests.  If you look good taking the tests but the officer says you still failed — jurors will doubt the officer’s testimony.

*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.

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Posted by Jeremy Rosenthal, Esq.

Collin County Deferred Prosecution Program — Update (1/31/11)

January 31, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Many changes have and are taking effect under new Criminal District Attorney Greg Willis.

Amongst those changes are changes to Collin County’s Deferred Prosecution Program.  That program was originally instituted by former District Attorney John R. Roach, Sr. and allowed youthful “offenders” the opportunity to avoid having their cases be filed formally in exchange for a less-formal probation under the supervision of the Collin County Community Supervision department (probation).

There were many complaints about how Mr. Roach’s administration ran the program.  For example, there were formal guidelines set in place that were inflexible and could be somewhat arbitrary.  For example, people were refused entry into the program because they did not reply within the narrow time frame given to them regardless of the reason.

Also, the method in which people were contacted was suspect.  First, the person would receive direct notification of the program via an unsigned letter bearing the letter-head of the probation department.  The letter would invite the offender and his/her parents to come and confess to the crime — and that they would then be considered for admission into Deferred Prosecution Program (the letters did not come from the DA’s office).  Lawyers in Texas cannot directly contact persons they know to be represented by counsel in opposing matters.

The new Collin County DA’s policy towards the Deferred Prosecution Program takes a far more common-sense approach.  It appears as though they are evaluating the program on a case-by-case basis and they are willing to review cases submitted to them for review.  It’s guesswork at this point as to how exactly the old-guidelines will play into the new decision making, but the Defense lawyer community is hopeful that the program will be more fair and available to people deserving a second chance.

Obviously, the DA’s office has to draw the line somewhere with allowing people into the Deferred Prosecution Program — which means that not everyone will get what they want.  At least everyone will be heard.  And that’s a huge change.

Ask your lawyer about the Deferred Prosecution Program in Collin County if you think it’s an option for your case or your child’s 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 for any specific situation, you should directly consult with an attorney.

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Posted by Jeremy Rosenthal, Esq.

A Quick Guide to Texas Drug Possession Charges

January 30, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Chapter 481 of the Texas Health and Safety Code govern drug offenses in Texas.  Don’t bother trying to look it up.  It’s an impossible maze and you’d need a pharmacy degree to understand.  And even then it’s tough.  Here’s a quick and dirty guide:

Three Factors Determine Offense Level for Drug Possession

The main factors are; (1) the type of drug; (2) the amount; and (3) surrounding aggravating circumstances (such as drug-free zone or possession with intent to deliver.)

Penalty Groups

Drugs are classified into penalty groups and there is a special group for marijuana.  Though this isn’t a complete list, it should give you a good idea… and you can click on the link for a complete list of each penalty group:

Penalty Group 1: Cocaine, Heroine, Methamphetamine, Ketamine, Oxycodone and Hydrocodone (over 300 mg).

Penalty Group 1a: LSD (Lysergic Acid Diethylamide).

Penalty Group 2: Ecstasy, PCP (Phencyclidine), Mescaline, Marinol,

Penalty Group 3: Valium, Xanex, Ritalin, and Hydrocodone (less than 300 mg.)

Penalty Group 4: Dionine (morphine), Motofen, Buprenorphine (an opioid), and Pyrovalerone.

Amounts:

Marijuana:

Usable Amount Less than 2 Ounces: Class B Misdemeanor.

Between 2 and 4 Oz.:  Class A Misdemeanor.

4 Oz. to 5 pounds:  State Jail Felony.

5lbs. to 50 lbs.:  3rd Degree Felony.

50 lbs. to 2,000 lbs.:  2nd Degree Felony.

Over 2,000 lbs.:  1st Degree Felony (Fine not to exceed $50,000)

Penalty Groups 1 & 2:

Less than 1 gram:  State Jail Felony.

Between 1 and 4 grams: 3rd Degree Felony

Between 4 and 200 grams (4 and 400 grams for Pen. Group 2): 2nd Degree Felony

Over 200 grams on Pen. Group 1 (over 400 grams for Pen. Group 2):  1st Degree Felony

400 grams or more (Pen. Group 1):  Enhanced 1st Degree Felony (10 years to 99).

Penalty Group 1A:

Less than 20 units: State jail felony

Between 20 and 80 units:  3rd Degree Felony

Between 80 and 4,000 units:  2nd Degree Felony

4,000 to 8,000 units:  1st Degree Felony

Over 8,000 Units:  Enhanced 1st Degree Felony

Penalty Group 3 &4

Less than 28 grams: Class A Misdemeanor.

28 to 200 grams: 3rd Degree Felony

200 grams to 400:  2nd Degree Felony

400 grams or more:  1st Degree Felony.

Aggravating Factors:

Aggravating factors can increase the punishment range.  The general rule of thumb is that an aggravating factor will enhance the punishment by one level.  Aggravating factors can be possession with intent to distribute or possession in a drug free zone.  For example, possession of marijuana of less than 2 ounces in a drug free zone is a Class A Misdemeanor instead of a Class B.

*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 issue you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Assault by “Impeding the Normal Breathing or Circulation”

January 29, 2011

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

In 2008, the Texas Legislature amended the assault statute to add section 22.01(b)(2)(B) which makes it a 3rd degree felony when, “the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.”  It essentially makes an assault where there is choking a felony instead of a misdemeanor.

A 3rd degree felony is punishable between 2 and 10 years in prison and/or a fine not to exceed $10,000.  Not to be over-looked are family violence allegations which can be every-bit as serious as felonies in their own way.

Thought the statute may seem clear cut, there are all sorts of legal issues with these types of prosecutions.  Keep in mind that newer statutes are the ones that tend to have unintended consequences or unforeseen loopholes.

The primary questions are whether defenses such as self-defense or consent apply to this type of an assault.  Section 22.06 of the Penal Code allows for consent as a defense to assaultive conduct (in relevant part), where “the conduct did not threaten or inflict serious bodily injury…” or was a known risk of the victim’s occupation.  So while a person cannot legally consent to an assault where they suffered serious bodily injury, it seems as though they may legally consent to an assault where there is a choking under 22.01(b)(2)(B).  Self-defense under Texas Penal Code 9.31 is broader, but it’s application to the assault by choking is also unclear.  Self-defense is justified, “…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.”  Though every court may treat this differently, and eventually the appellate courts may tell us how they think this law should work — it looks like it is an issue a jury would likely have to consider.  Did the alleged victim put themselves in a situation where they consented to being choked?  Was the accused justified in defending themselves by choking the alleged victim?  I’m sure there are countless scenarios where these could apply.

Other legal issues include whether the State can allege lesser-included offenses of misdemeanor assault in conjunction with the “choking” allegations.  District Courts which handle felony’s don’t have jurisdiction to hear misdemeanor cases.  This too is a question which may be subject of an appeal.

Finally there are the normal host of legal issues which surround an assault prosecution.  Those include possible hearsay statements, the defendant’s right to face his accuser in court, and the alleged victim’s right to counsel in the event they could be liable for inconsistent statements under “false report to a police officer.”

These prosecutions and situations are extremely complex.  An accused person should absolutely have an experienced lawyer that understands these intricacies of these newer types of prosecutions.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. He is designated as a Texas Super Lawyer by Thomson Reuters.

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Posted by Jeremy Rosenthal, Esq.

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