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.

Deep Lung Devices are Getting Harder to Avoid in Collin County While on Bond

December 14, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

All driving while intoxicated arrests in Texas require that a person see a magistrate judge.  That judge is required by law to make an initial assessment and to decide whether to order the defendant to have an ignition interlock device (also known as a deep lung device) under Texas Code of Criminal Procedure 17.441.

Here is the relevant text of 17.441:

“(a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Sections 49.04-49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code:

“(1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and

“(2) not operate any motor vehicle unless the vehicle is equipped with that device.

“(b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice.

Section 17.441 can be read to state that a judge can only order the interlock device on a vehicle if it’s the 2nd DWI arrest (or more) of the defendant.  The judge can find that an interlock ignition device is not appropriate in the best interests of justice even on a 2nd arrest.

In reality, Judge’s interpret the law to state that they can always place an interlock device on a car but are only required to do so on a 2nd offense.  It is unclear whether they are interpreting 17.441 as the basis for their beliefs of some other statute.  Additionally, many Collin County judges have informal policies that if a defendant had a car accident or was charged with the new offense of DWI with a blood alcohol concentration above 0.15, then they will order the deep lung device as well.

Ultimately deep lung devices are becoming more and more common as terms and conditions of bond in Collin County.  Arrest and going before the magistrate is not the only time in a case where a judge may have an opportunity to order the deep lung device as well… the judge can order the defendant get one when the defendant applies for an occupational license due to a driver’s license suspension, during a guilty plea, or if a jury convicts the defendant.

*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.  Contacting the attorney through this blog does not create an attorney client relationship and communications through this blog are not confidential.

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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.

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DWI Arrest — Bond Terms and Conditions

April 18, 2010

The vast majority of people arrested for misdemeanor DWI offenses are released on bond.  They are free from jail but must appear for court settings during the pendency of the charges against them.  While “on bond,” the legislature has required that certain conditions be met.  The main condition which affects some DWI arrests is the ordering of an interlock ignition device (or deep lung device) on the defendant’s car.  This means the device can be placed on someone’s car before they’ve had a trial or had their first main court setting.

Texas Code of Criminal Procedure 17.441 holds that the judge shall, as a matter of law, order a deep lung device be placed on the vehicle of the defendant if the arrest in question was for a subsequent DWI, intoxication assault, or intoxication manslaughter.  The judge may not order the interlock devices in those circumstances as well if they make a finding that ordering the device is not “in the best interest of justice.”

Although, 17.441 is the only provision of the Code of Criminal Procedure which directly addresses deep lung devices, judges and magistrates have broad discretion to make “reasonable” conditions of bond for “community safety” under Tex.Code.Crim.P. 17.40.  Some magistrates take this as carte blanche to slap deep lung devices on first DWI offenders in random situations.

If a magistrate has unreasonably placed an interlock device on the driver’s car after a DWI arrest, that decision can often be amended or changed by the trial judge at a later point while the accused is on bond pending charges.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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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