Should You Answer Questions After You are Read Miranda Rights?

February 25, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Criminal defense attorneys will universally tell you no — and with good reason.  Prisons are full of people who wish they hadn’t answered questions.

By reading your Miranda warnings, the police are telling you that they have already decided you’re guilty.

At best, they are telling you that they think their investigation may wind-up with you being arrested so they are “crossing their t’s and dotting their i’s.”

“But I’ve got nothing to hide?!?”

Maybe so.  But there are some bad assumptions you are making with that good faith rationale.

The main problem is that you are trying to convince someone that has already made-up their mind.  That is like trying to convince the vending machine that stole your dollar to give it back.

Also — you don’t know what the police are looking for with their questions and they do.  They may want just one key admission to satisfy a legal element they may already know but can’t otherwise prove.  You may tell them worlds of information they would have never known and now they’ve got a better case against you that they ever dreamed.  They’re happy letting you think you’re winning them over.

Police bank on the fact most of us were raised to respect and cooperate with authority.  But an officer’s job is to investigate crime and build cases against people.  Either they can prove all the elements of a crime or they cannot.  If they’ve got no evidence of certain elements — the only way they can get it is out of your mouth!  There is no advantage to talking with them — and if there is — there is no harm in consulting a lawyer first!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be legal advice.  For legal advice, you should consult an attorney.

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They Didn’t Read My Miranda Warnings — How Does it Affect My Case?

February 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

I’m often told by people that, “they didn’t read me my Miranda warnings.”  Sometimes this is important and sometimes it is not.

What Are Miranda Warnings?

Miranda refers to a 1960’s U.S. Supreme Court case where a conviction was reversed because the police did not advise a Defendant of his rights prior to getting confessions for several offenses.  I’ll spare you the legal treatise on the topic but just understand it’s a highly complicated area of law.

The Significance of Miranda Warnings

Miranda violations can result in excluded statements, admissions or confessions a person may make while in custody.

Your right to remain silent and your right to a lawyer are generally triggered when you are in “custodial interrogation” and you are being questioned by the police or other governmental agency.  Custodial interrogation is too complicated to go over in this brief article but I will say that a typical traffic stop will not qualify as custodial interrogation under the current law in Texas.

Texas has codified Miranda in Article 38.22 of the Texas Code of Criminal Procedure.  That statute has additional protections above and beyond what Miranda required.  An example of an additional protection is that to be used, an oral confession must be made in the presence of some sort of electronic recording device.

To know how significant a Miranda violation is depends on the facts of the case.  

A hypothetical Miranda violation occurs where someone is handcuffed in the police station under a spotlight with interrogators and admits to a crime.  In that situation, failure to Mirandize someone might result in the confession being tossed-out by a Court.

Obviously real life doesn’t work that way and a Miranda violation may be more subtle or less significant.

Take a DWI for example.  Most of the State’s case will be conduct,  breath, and performance on field sobriety tests.  These things are considered “non-testimonial.”

Even if the police violate Miranda and the person confesses to having consumed alcohol but doesn’t believe they’re drunk — the Miranda violation will have little, if any, impact on the outcome.

Contrast a drug possession case.  In those cases, sometimes the only evidence someone was in possession of contraband such as marijuana are statements or confessions after the drugs are found.  If an officer violates Miranda before a confession is given, the violation may very well change the outcome of the 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, you should consult an attorney.

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Punishment for a 2nd DWI in Texas

February 22, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Convictions for DWI’s are like stacking bricks higher and higher.  To recap, a first DWI is a Class B misdemeanor in Texas.  A second DWI is a Class A Misdemeanor.  The punishment range is between 72 hours of jail and 365 days, an/or a fine between $0 and $4,000.

A 2nd DWI means that you’ve been convicted of the first — regardless of how long ago that may have been.

Like a 1st DWI, probation is often the result of a conviction for a 2nd DWI — but clearly there is more jeopardy involved in a 2nd offense.  The maximum probation is 2 years and the probation itself gets stickier.  For example, in Texas we have what is called jail as “a term and condition” of probation.  What this means is that the Judge can send you to jail for up to 30 days as a part of your probation.  The minimum community service for a 2nd DWI is 80 hours.

Additionally, the Judge is required to place an interlock device on your car when you are originally released on bond from jail in the case while you await trial.  You can expect it to stay on during probation with a conviction.

As for driver’s license suspensions — the term of the suspension increases to 2 years (from the max of 180 days).  A person can qualify for an occupational license to assist them in driving to work, however, if the 2nd DWI was within 5 years of previous law enforcement contact involving alcohol, then the person doesn’t qualify for the occupational for 180 days after the suspension begins.  This is what DWI lawyers in Dallas and Collin Counties call a “hard suspension.”  It means no driving for six months.

Also the surcharge is $1,500 per year for 3 years.  Again, the surcharge is $2,000 for a breath test score over 0.16 for 3 years.

In Texas, some County Courts at Law have DWI programs for 2nd time DWI convictions.  In Collin County they have courts with intensive treatment but that offer some incentives to join the program such as lesser fines.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be legal advice.  For legal advice you should consult an attorney.

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What Happens After an Arrest and Release From Jail on a DWI

February 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

You’ve been released from jail after the worst night of your life after a DWI arrest.  Now what?

You’re immediately responsible for two things when you get released.

First is that if your driver’s licenses was taken by the officer because you either refused the breath test or the machine reading was above a 0.08 – you have 15 days from the date of the arrest to file for an Administrative Law Review Appeal (“ALR”).  If you don’t file your appeal, your temporary driver’s license (the yellow sheet of paper they’ve given you at the jail) will be valid for only 40 days from the date of arrest.  If you do appeal – the suspension is put off until your hearing, which is usually farther out than 40 days.  If you win the ALR, your license doesn’t get suspended.  If you lose the ALR, you may be eligible for an occupational license.

Second is that, in all likelihood, you’ll get a notice to come to Court.  Collin County will mail your court date usually somewhere between one and two months after your arrest — but it can be sooner so watch your mailbox!  Dallas gives you a case number and has you check in every few weeks until the case is filed – at which point you can begin evaluating the nuts and bolts of your case.

Collin County will sometimes give you an immediate court date a week or so after your release from jail on a DWI for the purposes of complying with Texas code provisions that require a judge to assess whether you need an interlock device (deep lung device) on your car.  You should get this notice upon leaving jail if you get it at all.

*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 this situation or any legal matter you should consult an attorney.

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Top 5 Mistakes When Hiring A Criminal Defense Attorney Countdown — #1

February 17, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

This week I’m counting down the top 5 mistakes people make in hiring a criminal defense attorney.

#1.  Hiring a lawyer that pleads everyone guilty.

I approach every case looking for a way to win – not why we should lose.  Sometimes the paths to victory are many, sometimes they are wide, and sometimes there is just a sliver of hope.  But the slivers are there if you look hard enough. I consider pleading guilty a last-option in most instances in Texas state courts in Collin and Dallas counties.

This means I set a decent percentage of them for trials or motions to suppress.  But there are lawyers who advise their clients to plead guilty virtually every time.

I rarely question another lawyer’s professional judgment.  And let’s be straight – pleading guilty or not guilty is exclusively the client’s decision.  But a lawyer’s advice typically plays a very heavy part.

I struggle to think of reasons why a particular lawyer simply never puts the State of Texas to task.  Maybe they’re intimidated.  Maybe they lack confidence.  Maybe they’ve made the immature mistake of sitting in judgment on their client if the client used poor judgment or made a mistake.

Whatever the case may be – trial is an important option and a constitutional right.  It should at least be discussed and considered.  Not having that option severely restricts your chances for success.

The cure for this is simple.  When interviewing your lawyer you should ask them how often they take cases to trial?  When was the last time they tried a case?  How many cases like yours have they tried in the past couple of years?

The answers will be revealing.  I’m not suggesting the “tougher” lawyers are better – but you should consider hiring someone that doesn’t take options off the table and who isn’t afraid to pull the trigger and take the state 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 consult an attorney.

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