“DWI Lite”

October 19, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Here’s an interesting commentary on a new proposal that may make it’s way to Austin next year.  The concept, dubbed by the media  “DWI Lite,” basically criminalizes driving with even less alcohol in your system than what would normally be a DWI.  They call it between 0.05 and 0.08 bac.

Of course they don’t have admissible breath tests on the side of the road which will mean that an officer can arrest virtually anyone that has alcohol on their breath.  And I’m curious to know… are there studies out there that suggest that the dangerous drivers are the ones between 0.05 and 0.08?  I truly don’t know if there is or if there isn’t, but it seems to me that the legislature could be “cracking-down” for the sake of… well… cracking-down.

Also what is ironic to me is that if you hear prosecutors during jury selection, examining witnesses, and during jury argument — they’re good at convincing people that 2 beers = drunk driver as it is.  The legal standard is, “not having the normal use of your mental or physical faculties” and they’ve argued for years that even the slightest loss of mental or physical coordination means someone is guilty.  By my logic, wouldn’t that make this new idea for “DWI Lite” redundant?

*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 an specific matter you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Proving Innocence

September 27, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

It’s extremely difficult to prove a negative.  That’s why our criminal courts don’t require it and the State always has the burden of proof.

A basic example I give jurors is to ask them prove they committed no traffic offenses on the way to jury duty that morning.  They very quickly get the point — other than their word, there is no way on Earth they can prove they didn’t run a red light, didn’t speed, or didn’t change lanes without signaling.

Jurors must be educated, though, and an experienced criminal trial attorney knows this.  Prosecutors over the yeas have developed subtle ways to undermine this point.  They’ll suggest to juries that the Defense has equal subpoena power and that the Defense has the right to call witnesses of their own.  I’m not sure what purpose it serves the prosecution to do this — other than to improperly shift the burden to the Defense.

There are some instances where Defendant’s should put on an innocence defense.  Testimony from the defendant isn’t legally required under the 5th Amendment, but an accused has the absolute right to testify in their own defense.  Testimony of credible witnesses may also help in an innocence defense.  Other than that, a thorough investigation of a case may reveal objective evidence which tend to be less refutable.

It is wrong to assume that because you have no evidence of innocence, or an innocence defense wouldn’t seem persuasive that the accused just plead guilty.  In a drunk driving charge, for instance, it usually (but not always) makes more logical sense to force the state to prove elements such as intoxication rather than try to show the jury how little a person drank before getting behind the wheel.

*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 situation you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Did I Pass the Field Sobriety Test?

August 1, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

When people are visiting with me about their recent DWI arrest in I’m often asked what constitutes passing or failing the standardized field sobriety tests.

I start by telling them that at least according to the grader– they probably failed — but the officer’s opinion ultimately isn’t what counts. It’s the jury’s opinion that matters and if the tests aren’t done to standard (and they often aren’t), then the jury may give the officer’s tests and opinions very little weight.

The truth is that there are three tests that are typically utilized by police and they are highly subjective in how they are graded. Not only that, but they must be given in the manner prescribed by the officer’s training or the results can be compromised. So when the officer says you failed — I tend not to worry.

In fact, the police officer’s own training manual has very strong language about how critical it is to do the test correctly. The Manual issued by the National Highway Training Safety Association (“NHTSA”) says in uppercase, bold letters:

IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES
ONLY WHEN:

THE TESTS ARE ADMINISTERED IN THE PRESCRIBED,
STANDARDIZED MANNER;

THE STANDARDIZED CLUES ARE USED TO ASSESS THE
SUSPECT’S PERFORMANCE;

THE STANDARDIZED CRITERIA ARE EMPLOYED TO
INTERPRET THAT PERFORMANCE.

IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST
ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.

While I won’t go into the details of each test just this moment; the horizontal gaze nystagmus (the eye test), the walk-and-turn (the walking the line test) and the one-leg-stand must each be done in the prescribed and standardized manner. If they’re not done that way then the jury can give the tests far less weight at trial — regardless of how the police office thought you did.

So whether you passed or failed ultimately not be the right question to ask. How the tests are done is critical too.

*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 you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Texas Legislature Considers DWI Reform

July 9, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The Dallas Morning News Published this article today regarding legislative hearings on DWI cases and enforcement.  The Senate Criminal Justice Committee, comprised of various experts on the matter such as judges as well as victims, met in Austin to discuss possible changes.

In trying to keep my editorializing to a minimum — I will say what was discussed on the panel is an excellent review of the real problems with DWI enforcement.  These are the issues that attorneys fighting Driving While Intoxicated cases see every day.  This is to say that the State’s “when all you have is a hammer — everything becomes a nail” philosophy backfires and creates just as many problems as it solves.

*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 case you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.