Who Can See My Criminal Record?

June 1, 2011

By Collin and Dallas County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Criminal records are generated different ways.  What you have to remember is that when you get arrested, you are cycling through a public system where information is (to varying degrees) open to the public.

Your “official” criminal records are kept by the FBI and the Texas Department of Public Safety.  The FBI runs the NCIC (National Crime Information Center) and DPS runs the TCIC (Texas Crime Information Center).  Only specifically authorized personnel are allowed to view information in these databases and it is not readily accessible to the public.  In fact, the illegal dissemination of information of the NCIC or TCIC is a class b misdemeanor in Texas.

When a private citizen or company is looking at your criminal record, what they are really looking at is information a third-party vendor has purchased or acquired directly from county, state or city court system.  Under the Gramm-Leach-Bliley Act of 1999, users must justify their queries and have a legitimate purpose for conducting background research on websites of the public data forums.  As you might guess, the categories are somewhat broad — so if you’re applying for a job or for credit then it’s safe to assume your background may be legally checked.

Non-disclosures and expunctions are ways in Texas that criminal records can be mitigated.  An expunction under Tex.Code.Crim.P. Chapter 55 is an extremely powerful right which authorizes the actual destruction of the information surrounding the arrest.  

A non-disclosure under the government code chapter 481 can help in limiting the persons who can have access to an arrest record.  Generally, only governmental agencies will have access to criminal records.

*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 particular issue, you should consult an attorney directly.

 


Can a Failed Drug Test Result in a Probation Revocation?

April 9, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The short answer is yes.  But as with all things in our court system, it’s not certain.

Here’s how a revocation works — if you do something (or don’t do something) which is a violation of your probation or deferred adjudication, then usually a probation officer will make the decision to recommend revocation to the prosecuting attorney.  If the prosecuting attorney agrees with the probation officer (and virtually all will), then a motion to revoke probation is filed, and usually a warrant is issued.  After the accused is brought back to court, the revocation is heard.  (FYI, you’re entitled to a bond on misdemeanor revocations but for felony revocations you are not entitled to a bond in Texas.  You’re only entitled to a bond for felony revocations if you were on deferred adjudication).

Technically, a probation officer in Texas works for the Judge, but they don’t carry the power of the judge.  If they want to take any action against you — they cannot do so on their own.  In order for a probation officer to formally change the terms and conditions of your probation, they must either do so with your agreement (admittedly sometimes after bullying probationers with “or else” threats), or they must go through the prosecutor.

A failed drug test is a common example of a probation violation that results in revocation (or adjudication if the person is on deferred).  Probation officers consider many things, however, before deciding to revoke.  They are people too and they’ll hopefully consider your history, your past cooperativeness or progress, or your sincerity in admitting making a mistake if that’s the case.  In some counties, probation officers may have a bigger or smaller case load — and unfair as it may be, that can also impact their decision.

If you have questions about how a probation officer is treating you or if you’re not sure about legal representations they make to you — it is not inappropriate at all to involve a lawyer.  Also remember that you have the right to remain silent even with a probation officer about violations they may allege.

*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 particular matter you should consult an attorney directly.


New Photo-Lineup Bill May Become Texas Law

March 25, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Texas legislature is considering measures to give force all law enforcement agencies conducting photo-lineups to have uniform standards and uniform procedures.

This article summarizes the problem and the situation.  Texas has had an atrocious record of wrongful convictions, and the statute is designed at eliminating one of the root causes — photo lineups that are not done correctly.  Experts agree that often the person administering the photo lineup can consciously or subconsciously influence the witness.

The measure will not entirely invalidate photo-lineups that don’t comply, however.  As long as the lineup “substantially complies” with state law, it will still be legal.  This clause takes a lot of bite out of the law, but it’s a step in the right direction none-the-less.

*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 pertaining to any legal matter you should consult an attorney directly.


When a Deep Lung Device is Required by Texas Law

March 7, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Deep lung devices (also called ignition interlock devices) are devices installed on a cars ignition which requires a clean breath specimen in order for the car to start.  Once the car is going, it randomly requires clean samples to continue.

I’m not sure exactly why, but deep lung devices are far more popular amongst judges today than they were even five years ago.  Part of the reason is because the law now requires these to be ordered on cars — but even so, it seems as though many judges are ordering them when it’s discretionary (meaning the the law leaves the decision to the judge as to whether to order it or not).

There are several times during a DWI case that a judge might have the opportunity to order the deep lung device to be ordered on a car.  First is upon arrest.  Tex.R.Crim.P. 17.441 requires a magistrate to make the determination upon initial arraignment as to whether an interlock device is required.  Although they are only legally required when a person is arrested for a subsequent DWI, the law allows the judge to order the device on the car anyway.  Often if there is an accident or if there is a high breath test score (which the judge knows about), then that often serves as their rationale for ordering the device on the car.

A second opportunity for the Court to order deep lung device on a car is during sentencing.  This is where the accused has either plead guilty or been found guilty after a trial.  A device is required for 1/2 of the probationary period in a 1st DWI conviction if the driver’s blood/alcohol level is in excess of 0.15 or if it is a subsequent DWI conviction.  Just the same as with the magistrate judge above, the judge controls the terms and conditions of probation — so even if there isn’t a breath test result above 0.15 or a subsequent conviction — the judge can order the device none-the-less.

A third time the Court would have the opportunity to order a deep lung breath analysis instrument is as a term of an occupational license.  An occupational license is a Court -ordered license which allows an individual to drive while their driver’s license is suspended.  Many judges will order the device as a condition of the occupational.

The Court can re-visit the deep lung device decision made by the magistrate during the case — if it was ordered in an instance that was discretionary.

The deep lung breathalyzer, while expensive, inconvenient and embarrassing can be used to your advantage during DWI proceedings.  With the device, there is a clear record of your history of compliance with the Court’s order.  If you have a device ordered on your car from the outset of your case — by the time the judge consider’s your sentence, you have objective and indisputable proof that you have been compliant with the court’s orders and are worthy of leniency.

*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.


Collin County Deferred Prosecution Program Update (2/10/11)

February 10, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

I recently blogged on some of the anticipated changes to the Collin County Deferred Prosecution Program that were in the works with the new District Attorney’s administration.

One of the changes that I’ve recently learned about is that the DA’s office is not necessarily putting an age limit on who is eligible for the program.  Previously, a person over 21 would not be eligible for the deferred prosecution program.

This confirms the new administration’s willingness to be flexible and to do the right thing in each and every case.

More updates to come.

*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 any particular situation, you should contact an attorney directly.