Texas DWI Punishment Gets Tougher for First Time Offenders. Again.

September 11, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

A person with a blood alcohol concentration with a 0.15 or higher at the time the test is taken can now be charged with a Class A misdemeanor DWI instead of a Class B if it is their first offense.  This change took effect as of September 1, 2011.

First, let’s discuss the practical effects of the change.  A Class A misdemeanor on a DWI is punishable between 30 days and 1 year of county jail and a fine not to exceed $4,000.  A Class B DWI is punishable by between 72 hours jail and 180 days and a fine not to exceed $2,000.   Unlike a 2nd DWI, however, this law does not require the defendant serve 10 days as a term and condition of probation — meaning that a person doesn’t have to go to jail for 10 days just to be granted probation.

Second, you can see that I’ve italicized the words above “at the time the test is taken.”  This is a significant departure from normal drunk driving law which prohibits one’s blood/ alcohol concentration being above a 0.08 at the time of driving.  This is a “tie goes to the prosecutor” provision because it is very difficult for prosecutors to prove whether a person’s blood alcohol concentration was higher or lower at the time of driving due to a process known as retrograde extrapolation.  So this twist is really just punishing people who have blood alcohol concentrations that are on the rise when they are driving.

Texas’ prosecutorial mentality of “when you have a hammer, everything looks like a nail” with this new change gives a person even more incentive to refuse a breath test and to take a DWI to trial.

*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 contact a lawyer directly.  Contacting the attorney through this blog does not create an attorney-client relationship and no communication is considered privileged.

 

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Collin County Deferred Prosecution Program Update (8/20/2011)

August 20, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

It’s now been over eight months since the Collin County District Attorney’s office revamped, expanded, and improved the Deferred Prosecution Program.  The program is designed to allow people with clean criminal histories the opportunity to have an arrest fully expunged after completing a probation-like process with the Collin County probation department.

The program has taken some time to develop and have it’s kinks ironed out.  You can read my previous updates about the program here, here and here.

I have three observations/ updates to make since my last post about the topic in April.

First is that I seem to remember that many people admitted to the Deferred Prosecution Program (“DPP”) under the previous District Attorney administration were later removed from the program for trivial or debatable ‘violations.’  I have not heard such complaints about the new program.

Second is that the Collin County Community Supervision Department (probation) is extremely busy administering the program.  Once someone receives an interview for acceptance into the deferred prosecution program, it is not uncommon to experience a delay before the interview date.

Finally is that the Courts are cooperative with the program — but are struggling with how to treat the cases which pile up on their docket.  Most Courts are setting people’s cases who get accepted into the program for a ‘status’ six months to a year after the person is accepted into the program.  This just means you might actually have to check in with the court after you’ve completed the deferred prosecution program.

Also, the District Attorney’s office is becoming slightly more selective in choosing candidates for the program (Okay, that’s four points).  Multiple assistants district attorneys review each file before final approval, and approval is done on a case by case basis.  Also, they are open to hearing from Defendant’s lawyers as to why their clients should be admitted.

*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 contact an attorney directly.

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Why I Defend People

July 27, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Why do I defend people?

There are many reasons, I suppose.  I’m sure much of it is due to the way I was raised or my experiences with authority figures when I was growing up.  Either way, as with most people, I’m sure I’ll never fully understand exactly why I do what I do for a living.

Beyond that, though, there are several core values which I think I share with many other lawyers.

1.  Good People Can be Wrong

I fear the destruction decent people can do when they are blinded by the goodness of their work.  The more I see our criminal justice system in action, the more in awe I am of how the framers of the U.S. Constitution understood human nature.  They knew back then that government, law enforcement, and even the masses of citizens will ALWAYS seek more power in the name of safety, security and decency.  It was true back then and it’s true today.  And write it down… it will be true 200 years from now.

I realize it’s very easy to sound like the village idiot when discussing over-zealous prosecution.  But here’s the thing… decent people hurting others in the name of good comes in very subtle forms…

…like a rookie officer pretending to do a computer check while waiting for drug dogs to smell a teenagers car;

…a friendly reminder from the County Sheriff that you can enjoy your holiday weekend knowing officers are standing by to jam needles in the arms of the bad guys driving drunk;

…or a petty store loss prevention officer detaining and lecturing a manic depressed housewife for shoplifting for two hours before calling the police.

2.  Police Don’t have the Monopoly on Justice

I get to visit with juries on a frequent basis and show them that the prosecution and the police don’t have a monopoly on truth, fairness or justice.  Though I make a joke about it, we show citizens Superman and Batman don’t drink coffee with the police at Starbucks in between shifts rounding up bad guys.

We don’t live in a cartoon world where everything is black or white.  Just because the legislature says the punishment for a DWI is fair — doesn’t make it so.  I enjoy showing jurors the human side of the story to allow them to judge for themselves the right thing to do in each case.

3.  It Makes Law Enforcement Better

You read that right.

Everyone in America gets their paper graded.  Everyone.  Juries and Judges with the help of criminal defense Lawyers grade the police papers’ by throwing out cases where they have over-reached, done a sloppy job, or been flat wrong.  Law Enforcement officers will tell you that they can be trusted to manage their own performance, but again, the “trust-me” system of checks and balances is more for places like North Korea.

When a police officer gets caught exaggerating clues in front of a jury or has their arrest thrown out by a Judge because they took a shortcut, it honestly makes them a better officer whether they’ll admit that or not.

4.  It’s a Hard Job and it Takes Courage

Being a criminal defense lawyer isn’t for everyone.  You have to have the courage to stand in front of 70 complete strangers who can’t understand why the person next to you should even deserve a lawyer… or how any lawyer would even undertake to defend such a person.

Not only do you have to have the courage to confront this situation… you have to have the confidence, experience and preparation to fight — and win — trials that begin this way.

I’m not suggesting being a prosecuting attorney is easy or less honorable because it certainly is not.  But it’s a lot easier to stand on the star in the middle of Cowboy’s Stadium and scream “Go Cowboys” than it is to yell, “You’ve got it all wrong!”

5.  I’m a contrarian.

I just am.

*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 consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Governor Perry Vetoes Texting While Driving Ban

June 19, 2011

By Dallas and Collin Count Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Texas legislature recently passed House Bill 242 which made texting while driving illegal in Texas.  It would have made violations a Class C misdemeanor, which is the lowest offense level – equivalent to speeding.

On June 17, 2011, Governor Perry vetoed the bill saying the bill was “a government effort to micromanage the behavior of adults.”  He did state texting while driving was “reckless and irresponsible.”

Study after study has shown texting while driving to be as or more dangerous than drunk driving.

*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.

 

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Posted by Jeremy Rosenthal, Esq.

Not Much New DWI Legislation in Texas for 2011

June 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

After a political season with a lot of chest-beating and drum-banging about changes to existing Driving While Intoxicated laws in Texas, only several changes will be made to the Texas Penal Code.  You can read an article by the Dallas Morning News on the topic here.

There are only two changes. The first is that that punishment ranges can be increased for first-time DWI cases with a blood-alcohol concentration of 0.15 or greater from 180 days to 1 year of jail for punishment. This change may sound like a harsh one, but the vast majority of DWI first-time offenders get probation regardless of the jail sentence — which means the punishment is suspended whether it’s 72 hours or 1 year of jail. The second change is to increase the punishment level where a victim of intoxicated assault is in a vegetative state from 10 years to 20 years.

The big news is that the legislature did not pass a bill allowing deferred adjudication in Driving While Intoxicated for first time offenders. The bill had broad support from law enforcement as well as prosecutors because the harsh state of DWI penalties gives prosecutors no room to plea-bargain. Defense lawyers had a luke-warm reaction to the idea because the proposed legislation was extremely shallow in it’s benefits for those pleading guilty to a first-time drunk driving charge.

*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 consult an attorney directly.

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