Do I Need a Lawyer for a DUI?

December 16, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Yes.

In Texas our legislature, law enforcement, and many prosecutors know of only one way to deal with Driving While Intoxicated.  To be as mean as possible.  Even if drunk driving is at record lows, they figure the only way to keep driving the numbers down even further is to get progressively meaner and meaner.  Of course, they can’t actually prove getting meaner actually works.   But you are fighting a harsh, unsympathetic law enforcement machine designed to break your pocket book, label you forever, and in some cases humiliate you in the name of public safety.

Even though a first DWI is a misdemeanor in Texas, it almost acts like a felony in some ways, or as I put it, it’s a misdemeanor on steroids.  There are generally driver’s license suspensions, deep lung devices that can be put on your car which can be humiliating, and thousands of dollars in sur-charges to keep your driver’s license on a 1st DWI arrest.

Texas has progressively harshened their drunk driving laws.  The legislature has addressed intoxication offenses during every single bi-annual session since 1993.  The most recent changes allow for people to be charged with a class A misdemeanor if someone’s blood/alcohol concentration is greater than 0.15 at the time they are tested.

Texas law enforcement agencies have aggressively been pursuing involuntary blood draws of suspects if the increased punishment weren’t enough.  Many agencies in Texas have began introducing “no refusal weekend” policies, which means that if a suspect refuses a breath test, the police merely fax a cookie-cutter warrant to a judge on call.  If the judge signs the warrant, then the person’s blood is taken without their consent.  In the words of Richard Alpert, Assistant District Attorney in Tarrant County and one of the lead intoxication offense prosecutors in the State, “If it bleeds, it pleads.”

So you can see, Texas’ mentality with DWI enforcement is that “you can’t make an omelette without breaking some eggs.”

But you’re not helpless.  Whether you made a mistake by getting behind the wheel, or whether the only mistake you made was running into a manipulative officer having a bad night… you don’t need to let yourself be thrashed, broken, and humiliated.

There are countless ways to defend DWI cases ranging from the legality of the stop in the first place, to the intoxication aspects, and even some of the smaller, over-looked elements to the case.  Even if the case is extremely difficult, the help of counsel can assist you in lifting at least some of the heavier punishments from these laws.

Just because the prosecutors, police, and legislature says it’s justice doesn’t make it so.

*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 regarding any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this blog are not confidential.

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Posted by Jeremy Rosenthal, Esq.

Should I Take the Field Sobriety Tests?

February 5, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

No.

I’ve put a lot of time and thought into the answer and here’s why I’ve ultimately come to that conclusion:  because experience tells me most of the time the officer has already made his decision to arrest you by the time he asks you to take the field sobriety tests.  So no matter how well you do, you’re not being graded by a fair judge.  You’re being graded by someone who already decided you’re going to jail.

If you’re reading this because you were arrested for DWI and you took the field sobriety tests — don’t feel bad at all about your decision.  It’s a common one and there are plenty of decent reasons to submit to them.  I just feel that in totality — the bad outweighs the good — and I’ve had a lot more time and experience with these cases than you had before you were asked to take the tests!

Most people who submit to field sobriety tests do so for two main reasons.  First, is that they don’t know they have the right to refuse.  In Texas, a person absolutely has the right to refuse.  Second, the person thinks they’ll somehow show the officer that they’re okay to drive (again, what they don’t know is changing the officer’s mind is an impossible task).

Police play into the second reason very heavily.  Remember, deception is a legitimate tool of law enforcement.  Police officers have extremely honed skills at manipulating people to comply with their requests — even though the citizen has no obligation to do so.  Field sobriety tests are a classic example.  Here’s another example — ever been asked by a police officer that just pulled you over if you know why he pulled you over?  It’s a game of “gotcha” and now you can’t fight the ticket if you answered!  When an officer asks you to take the tests to see if “you’re okay to drive,” it may sound like he’s thinking of letting you go — but odds are that it just sounds that way!  Only the officer really knows — and you have no way of knowing if he’s already called the tow truck for your car.

There are some down sides to refusing field sobriety tests too.

First is that you’re basically daring the officer to take you to jail.  Most will take you up on it.  You’re basically gambling that even if he takes you to jail that you’ll be able to beat the DWI in court by not providing any evidence knowing the State has the burden of proof.

Second is that you’re possibly making yourself the” bad guy” in front of the jury by not complying with the police.  Most jurors ask themselves whether they would take the tests or not and even though most don’t have well informed opinions, most would take the tests… but ultimately, being the “bad-guy” can be overcome.

Third is that there’s always the chance that you’ve run into a policeman that hasn’t made up their mind.  It’s probably the exception and not the rule — but it does happen.

Finally is that jurors put more stock in how you look generally on the video than how the officer testifies you did on the field sobriety tests.  If you look good taking the tests but the officer says you still failed — jurors will doubt the officer’s testimony.

*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 situation, you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

“DWI Lite”

October 19, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Here’s an interesting commentary on a new proposal that may make it’s way to Austin next year.  The concept, dubbed by the media  “DWI Lite,” basically criminalizes driving with even less alcohol in your system than what would normally be a DWI.  They call it between 0.05 and 0.08 bac.

Of course they don’t have admissible breath tests on the side of the road which will mean that an officer can arrest virtually anyone that has alcohol on their breath.  And I’m curious to know… are there studies out there that suggest that the dangerous drivers are the ones between 0.05 and 0.08?  I truly don’t know if there is or if there isn’t, but it seems to me that the legislature could be “cracking-down” for the sake of… well… cracking-down.

Also what is ironic to me is that if you hear prosecutors during jury selection, examining witnesses, and during jury argument — they’re good at convincing people that 2 beers = drunk driver as it is.  The legal standard is, “not having the normal use of your mental or physical faculties” and they’ve argued for years that even the slightest loss of mental or physical coordination means someone is guilty.  By my logic, wouldn’t that make this new idea for “DWI Lite” redundant?

*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 an specific matter you should directly consult an attorney.

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Texas DWI Laws for Beginners

July 1, 2010

By Collin County Criminal Defense Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

For Starters:

Everyone is presumed innocent and the police and prosecution must prove the case beyond all reasonable doubt… and that goes for DWI’s and DUI’s too.  Accused people are acquitted of DWI in Courthouses all over Texas every day.  Just because the Police believe something does not make it so.

The nuts and bolts:

Texas DWI law can be extremely complicated but we’ll start with the basics.  For more advanced discussions, you can read here, here, and here.

Tex.Pen.C. 49.04(a) makes driving while intoxicated illegal.  That provision says, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”

Tex.Pen.C. 49.01 (A) and (B) define “intoxication” as… “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  having an alcohol concentration of 0.08 or more.”

A first time driving while intoxicated charge is a class b misdemeanor with a minimum of 72 hours of jail and a maximum of 180 days; and/or a fine not to exceed $2,000.

Punishment

You can read more about DWI punishment in Texas here.  A big point with DWI’s is that there is no deferred adjudication in a DWI case, meaning that in any case where the charges are pursued — it will result either in an acquittal or a final conviction.  There is no middle ground.

Also, the legislature has made it a class a misdemeanor even for a 1st time offense if the blood alcohol level is tested at or over 0.15.

Driver’s License Suspension

Under the Texas Transportation Code, your Texas driver’s license can be suspended for up to 180 days for refusing a breath test or 90 days for taking and failing the breath test.  The police won’t tell you this — but the suspension is not automatic.  You have typically 15-days to appeal the suspension.  Even if your license is suspended, you may be eligible for an occupational driver’s license which would allow you to drive for various reasons including work and household purposes.

Surcharges

If you are convicted of a DWI in Texas, you will be required to pay money for three years after your conviction to maintain your driver’s license.  For a first DWI the surcharge is $1,000 per year; for a second DWI the surcharge is $1,500 per year, and if your breath test result is greater than 0.16 or greater, the surcharge is $2,000.

My Aggressive Stance

There is generally little, if any, reason to not be aggressive in attacking these cases.  The Texas Legislature is continually making laws on DWI and DUI harder and harder and harder.  For that reason it is often the case that we don’t have anything to lose by taking a stand and fighting these charges.

When choosing a lawyer for defense of a drunk driving charge, be sure to ask how often that lawyer takes cases to trial and what they do to prepare.

*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 about any specific situation you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

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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Posted by Jeremy Rosenthal, Esq.