Should I Just Call The Prosecutor To Help Them Get My Loved One Help with a Drug or Alcohol Problem?

June 1, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m asked every now and again by a family of a client if they shouldn’t just talk with a prosecutor in a case where their loved one clearly has a drug or alcohol problem — to see what the prosecutor can do to facilitate treatment.

That many not be the best idea.

Here’s why — because the prosecutor’s version of help and the real version of help may be completely different concepts.

Some prosecutors understand drug and alcohol dependency issues and others simply don’t.  Prosecutors who tend to see addiction and mental disorders as excuses may use what you tell them as a battering ram against your loved one.  To be fair — many prosecutors “get it” and do bend over backwards to help.  The problem from a family member’s stand-point is that divulging negative information to an agent of the State is always a gamble.

As criminal defense lawyers and prosecutors, substance abuse treatment and counseling aren’t really at the core of what we do.  We tend to analyze people’s cases from legal perspectives but there’s obviously a heavy overlap with substance abuse and treatment.

My advice is typically to seek private treatment over treatment affiliated with probation or directly with the criminal justice system.  The reason being is that there are several legal layers of protection in the private setting which are not available otherwise.

HIPAA and patient privacy laws will protect a patient in a private treatment facility but may not in a state or probation run program.  Also there tends to be better customer service in the private sector.  There, the treatment facility is accountable to the paying client.  In the probation setting — the treatment providers are conflicted between treating the patient and reporting violations to the prosecutors or the Judge.

If treatment is ordered as part of probation, for instance, and the patient doesn’t follow through with meetings — or admits to other unresolved crimes during treatment — those could be used for further prosecution and/or probation revocation.

*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 of your own situation you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

How Drug Charges Get Enhanced in Texas

May 13, 2010

Police and prosecutors have many tools at their disposal to try and enhance drug cases to higher punishments. Because many off them still believe the only way to fight the war on drugs is to load our jails and prisons with everyday people — they can and do get very creative with how they attempt to maximize charges.

Drug Free Zones

Drug charges can be increased if the offense is alleged to have occurred in a “drug free zone.”  Drug free zones can be very complicated under the Health and Safety Code 481.134(a).  They obviously includes schools, but also includes playgrounds where there are three or more apparati.  Also included are facilities such as private day-care centers and even places such as public gyms that supervise children for an hour or so while their parents exercise!  There are other technical issues such as the degree of public access which make these issues very legally intensive.

Police can and do go to great measures to show that a drug offense was committed in a “drug free zone” even where the zone may be coincidental to the case.  Again, the code is complicated and merely because the police think it qualifies as a drug free zone doesn’t make it so.

Intent to Distribute

Although the statutory language differs with regards to the quantities and the substances involved, generally speaking, charges can be increased where a person, “knowingly manufactures, delivers, or possesses with intent to deliver” the contraband in question.  [See e.g. Health and Safety Code 481.112(a) dealing with penalty group 1.]

Police and prosecutors typically try to demonstrate this through surrounding circumstances such as quantity of the drugs found, whether there is paraphernalia which would suggest sales such as plastic baggies, scales, excessive cash, etc.  Obviously, sometimes police will attempt to observe actual drug transactions as well.

In summation, aggressive law enforcement and prosecutors can and do find many ways to try and increase punishment ranges for criminal drug cases.  Often times they over-reach, and this is where an experienced criminal drug defense lawyer can be of great assistance.

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 should be considered legal advice.  For legal advice you should directly consult an attorney.

 

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Posted by Jeremy Rosenthal, Esq.

Don’t Agree to a Warrantless Search

April 5, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Nothing good can happen from a voluntary search.

At best, nothing bad will happen.  Who would ever make a business decision, take a gamble, or play a game where the best you can do is tie?

If you consent to a warrantless search the best thing which could happen is nothing.  The worst thing which could happen is the officer find something illegal and take you to jail — and to make things worse — it leaves you with little legal defense later.

But I Don’t Have Anything to Hide

It’s not uncommon for police to find things you didn’t know were in your car or things you might have forgotten about.  Drugs tend to play “musical chairs” when 3 or 4 people are in a car a police car is in the process of pulling you over.

I can’t tell you how many times I’ve heard people tell me they didn’t drugs were in the car.  Many people also get stuck with weapons charges because they assumed a certain knife or other weapon was perfectly legal.

Warrantless Searches are Presumed Invalid

Most people don’t know that police can’t just dig through your car or house just because they want to.  Police must play within the rules and can only search without a warrant or consent during a hand-full of situations.  In fact, Texas law actually presumes that a warrant-less search is actually invalid.  Where you agree to allow the officer to search, however, you’ve punted your rights away.

Police won’t tell you this, but you’ve got the right under the Fourth Amendment to the U.S. Constitution and Article 9, Section 1 of the Texas Constitution to be free from unreasonable search and seizure.  You can refuse many searches.  There are some situations where the police don’t need your consent — such as search warrants.  In those situations, your remedy is to fight the search in court later.

Refusing to allow an officer to search during a traffic stop, for example, is easier said than done.  First of all, the vast majority of the time the officer knows (1) what he or she is after; (2) the law with search and seizure; (3) the magic words they need to get you to say to waive your rights; and (4) most people they encounter on the road are subservient to authority and will have a hard time saying no if pressed.

Many people think that if they refuse the search, the officer may become agitated and retaliate somehow by writing more tickets, calling other police to the scene, or trying to search anyway.  Some, all, or none of these things may happen — but what will absolutely happen is that you will waive your valuable rights which will be painfully obvious during later court proceedings.  If we were to stack all the 4th Amendment cases, the pages would go all the way to the moon. Courts have dealt with virtually any scenario you can think of… and the police really do have tons of limitations you may not know about.

Here’s a video from the ACLU that talks about police encounters.  It’s a bit odd and campy, but is very informational and captures the general tone of some police encounters.  It’s obviously not a “how to get away with breaking the law” video, but is intended (as with this blog) to be generally informative of legal rights.

*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 and is intended to be general information.  For specific legal advice you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

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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Posted by Jeremy Rosenthal, Esq.