Dallas Police Announce “No Refusal” Labor Day Weekend, 2010

September 4, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Dallas has announced a “no refusal weekend” for Labor day weekend, 2010.  You can read the details here.

These weekends are becoming more and more commonplace.  Not that I feel the need to editorialize but there are plenty of things about this policy that ruffle my feathers legally speaking.  And there is actually a positive aspect of a blanket policy from a DWI Defense lawyer’s perspective.

The Plus Side from A Defense Lawyer’s Perspective

As Mark Twain said, “there are lies, damn lies, and statistics.”  I’ve heard police and law enforcement agencies brag about the “success” of the blood draws in that when they draw blood with a search warrant — every single result is well over the legal limit.

But here’s the problem — they’re not drawing blood from everyone.  When no one is coming in under the limit — or even close for that matter — it tells me they’re only drawing blood in the cases where they think they’ll get a high number.  This is a clear (though probably unintentional) manipulation of the numbers.

A blanket “no refusal” weekend where the officer has no discretion EXCEPT to apply for a search warrant and draw blood may show that some people below — perhaps well below — the legal limit are being caught in the wide-net cast by police in the name of goodness and public safety.

Making Up the Rules as they Go Along

Texas Transportation Code Section 724.013 says in relevant part, “Except as provided by Section 724.012(b), [generally felony DWI situations such as intoxicated assault, intoxicated manslaughter, DWI with a minor, etc.] a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”

I’m not sure what part of that rule the Police don’t understand.  The prosecution argues under Chapter 18 of the Texas Code of Criminal Procedure that they are entitled to apply for a search warrant for blood — and the more general law controls over the more specific law.  While Court’s are supposed to give more specific laws more weight than general ones, the police and the prosecution are making their creative argument for blood draws… for the purposes of good an public safety of course.

But making up the rules as you go along is okay when its in the name of goodness and public safety.  Just ask the Dallas Police.

*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 specific case or situation you should consult an attorney directly.

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Dallas Morning News DWI Series

August 16, 2010

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

(972) 562-7549

texasdefensefirm.com

The Dallas Morning News is running a series of articles about DWI’s as they relate to the criminal justice system August 14, 15, and 16, 2010.  You can read today’s article here.

Regardless of whether you agree or disagree with the article’s point of view it is informative nonetheless as the staff authors Diane Jennings, Selwyn Crawford and Darlean Spangenberger have clearly done their homework in interviewing prosecutors, judges, and criminal defense lawyers alike.  What I think they’re missing is that this problem has 10-sides… not just 3.

My chief complaint (this is MY blog after all), is that both yesterday’s and today’s article assume anyone accused of an intoxication offense is, in fact, guilty.  From that starting point, it is understandable then that it appears anyone and everyone that gets a result short of a full-fledged flogging is somehow cheating the system.  Let’s not forget this is a county known for sending innocent people to prison.

I am glad to see the concept of deferred adjudication enter the conversation, however, as one of the main problems with the Courts dealing with DWI’s is the all-or-nothing position people accused of DWIs face on a daily basis.  Giving the accused a middle ground gives them something to lose by fighting the charges and in my opinion would be a major step towards clearing the dockets.

One suggestion by Richard Alpert (a Tarrant County Prosecutor known state-wide as an authority on prosecuting DWI) suggests in today’s article that if the legislature is going to consider deferred for DWI cases that they at least be able to enhance subsequent DWI’s as if the previous deferred was a conviction.  Sadly, this is exactly what makes deferred adjudication a trap-door in other cases.  Essentially it would be deferred in name only — and as I joke with my clients — it only feels good to get deferred.

But I digress… if you’re interested in the topic, the DMN series is a decent enough read.

*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 should be considered legal advice.  For legal advice for any specific situation you should contact an attorney directly.

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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.

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Passing The Breath Test Doesn’t Mean You Don’t Get Charged with DWI

March 5, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code Section 49.01(2) defines intoxication as

“(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B)  having an alcohol concentration of 0.08 or more.”

As you can see the legislature used the word “or” between subsection (A) and (B).  This means that you can be charged with DWI where the officer believes you “do not have the normal use…” regardless of whether a breath test was taken — and regardless of whether a breath test result was below 0.08.

Technical Supervisors, who are the state’s “breath test experts” at trial have training on alcohol, it’s effects on the body, and it’s effects on driving.  They testify, in general, that no one has the “normal use” above 0.08 for the purposes of operating a motor vehicle and some lack the “normal use” below 0.08.

The end analysis is simple — if the officer says you’ve lost the “normal use,” then you are getting arrested for DWI regardless if you blow a 0.11 or a 0.06.

Many police officers will also suspect marijuana, narcotics, or medications may be responsible for someone’s condition even if there is little or no evidence of it.

As a former Collin County Prosecutor and as a Criminal Defense Lawyer in Dallas and Collin Counties, I have yet to see or hear of anyone that got taken back to the police station for DWI, was asked to take a breath test, and wasn’t charged with DWI regardless of the result.  Maybe it has happened.  I’ve just never heard about it.

This is part of the lose-lose equation which is the breath test.  And then the police actually wonder why people refuse the breath test all the time.

*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 should be considered legal advice.  For legal advice, you should consult with an attorney.

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