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.

 


K2 is Now Illegal in Texas

September 2, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Texas Legislature in 2011 has made possession of the synthetic form of marijuana, popularly known as “K2” illegal. Synthetic cannabis blends have been around for the past decade or so.  Many think they achieved an effect through a mixture of legal herbs. In reality, it contains synthetic cannabinoids which act on the body in a similar way to cannabinoids naturally found in cannabis, such as THC.

The penalties for possession of K2 are no different than for possession of marijuana.  That is, it can be either a class a or class b misdemeanor depending on the amount possessed.

The same legal definition of possession applies as with any drug.  That is, possession is defined by Texas Penal Code 1.07(39) as actual care, custody, management or control.

*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.  Contacting the attorney through this forum does not constitute legal representation and contact information is not privileged.


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.


Why I LOVE the TV Show “Cops”

August 6, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

I love the TV show “Cops.”  I normally hate lawyer shows and courtroom shows, but for some reason when I’m flipping the channel and I see “Cops” on, I have to sit down and watch.

It took me a while to figure out my strange fascination with this show, but I think I’ve finally put my finger on it.  I love how it humanizes not only law enforcement, but the entire situation surrounding a patrol and an arrest in a way no other program can deliver.

We get to see the officers talk with the camera one-on-one, and we learn very quickly that some officers are human, down to Earth and are men of high integrity.  We also get to learn that others take themselves far too seriously, stretch their knowledge in areas to seem more experienced than they actually are and use gratuitous police jargon to impress the cameras.

The program obviously shows that police put their lives on the line to protect the public, and it shows some of the gritty conflicts they encounter — which frankly most of us go out of our way to avoid.  When it’s 2 in the morning and I hear something outside go “bump” in the night… no one is happier than I that someone is out there to protect me and my family if the situation arose.

The show has many situations where the issues are obvious and the suspect clearly guilty.  There are other situations, though, where you can the see officer making very human mistakes.  Group situations are common where the officers have to choose who they think is right.  It’s amazing to see that when an officer makes up his mind who is right or wrong… how virtually no fact or person can change their mind.  Police will interview multiple people with questionable stories, yet one goes away in handcuffs and the rest get handshakes.  The arrest is usually followed by a self-serving justification.

But here’s my favorite part of the show… and you rarely see this in real practice as a criminal defense lawyer (probably due to the bright lights and cameras of the show).  My favorite is after the arrested person is in handcuffs and in the back of the squad car, the officer gives the Defendant the obligatory patronizing lecture of how they can be a better person.

There are two reasons I really enjoy the obligatory lecture.  First is that it’s fascinating to me as to why an officer finds it necessary to lecture someone that is often clearly out of it.  Often the guy in the back seat of the car is either stoned out of their gourd, just had the snot beaten out of him, or was just hit with a stun gun by the police.  Why the officer feels the need to show the world he is superior to someone in this state is beyond me.

The second and main reason, though, that I like the obligatory lecture is that it displays a common element you run into as a criminal defense lawyer from police officers and even some prosecutors.  The ability to sit in judgment on another person with great ease without regard to one’s own faults.  Keep in mind that by this point in the show, we have seen the lecturing officer often improperly profile someone, use excessive force, or frequently manipulate someone that is scared or intimidated.

My final point about the show is it also demonstrates how they give lip-service to the presumption of innocence which they otherwise run rough-shod over.  I could spend hours on that alone, but I won’t bore you.

I hope my points make you watch the show in a different way next time regardless of whether you agree with my views and observations.  As always, these are healthy debates.

*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.


My Comments in the McKinney Courier Gazette’s Article about the “No Refusal” Fourth of July Weekend

July 2, 2011

By Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Collin County has designated the 4th of July holiday weekend as a “no refusal weekend.”  You can read the McKinney Courier Gazette’s article about it here (the DWI lawyer they talk to seems very good!)

*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 case you should contact an attorney directly.