When do I Have to Plead Guilty or Not Guilty in a Criminal Case?

August 17, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

In Dallas and Collin County criminal defendants are typically not required to enter into a plea on initial court settings and typically only do so either immediately prior to trial (in the case of a not guilty plea), or obviously if and when they make a plea bargain with the State. Most initial and second settings are merely to make sure the defendant is keeping up with requirements of bond as well as giving the prosecutor and defense lawyer an opportunity to make progress towards the resolution of the case… Be that a dismissal, a trial, or a plea bargain. Visiting directly with the judge is rare at these court dates.

Chapter 26 of the Texas Code of Criminal Procedure governs arraignments (the formal process where a court informs the accused of the charges against them as well as advising the accused of other rights). The arraignment is typically where a defendant will enter a plea, but the code is relatively silent on exactly when that must occur. Tex.Code.Crim.P. 26.03 only says arraignment is improper if it’s done within two days of indictment and the accused is still in jail.

Most Texas Courts have their own policies in place for when they do arraignments requiring a defendant to plead guilty or not guilty. In General, Dallas and Collin Counties only require the plea to be made at a guilty plea or before trial begins.

Some courts may seek to arraign defendants at their initial court setting for other reasons. This doesn’t necessarily mean you can’t change your plea but you should obviously consult your lawyer first.

*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 as legal advice. For legal advice you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

“No Refusal Weekend” for DWIs in Dallas and Plano

May 30, 2010

Cities around North Central Texas are publicizing their “no refusal” policies this weekend for DWI enforcement in an effort to ramp up law enforcement and discourage impaired driving. Some have issued press releases to the media such as this one. They’re beginning to have these weekends routinely on Memorial Day, the Fourth of July and Labor day.

Although the press release doesn’t spell it out, what they are trying to communicate is that if you refuse to submit to the breath test, they’ll simply go to a magistrate that is on standby to get a warrant signed. That warrant will enable them to draw your blood, hence the “no refusal.”

In Texas, the police must be extremely careful not to coerce a person to voluntarily give a breath specimen. When a person is formally offered a breath test, they are done so through documents called dic-23, 24, and 25. Those documents lay out all the dangers and disadvantages of submitting to a breath test.

An officer cannot coerce or intimidate a person into submitting to a breath test in Texas. If an officer alters, amends, adds, or subtracts warnings (generally be editorializing his opinion in some way) about the warnings or what the resulting action may be — then they flirt with having the breath test thrown out under a line of cases called the Erdman doctrine. The vast majority of officers will read the dic warnings in a scripted fashion because they don’t want the results of the test thrown out.

The press release definitely walks a tight rope. They’re trying to curb drunk driving this weekend (which everyone agrees is a good thing). But, by over-publicizing the “no refusal weekend,” it is quite possible that people arrested for DWI submit to the breath test because they fear the police punish a refusal by jamming a needle into their arms. It is interesting, then, that the press release omits any references to warrants, and merely insinuates that medical personnel will just happen to be around.

Maybe they’re afraid some lawyer might try and put the press release into evidence during a trial down line to show the police are just trying to intimidate everyone into submitting to a breath test?

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 specific legal advice, you should directly consult an attorney.

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DWI Surcharges Clog Texas Courts

April 27, 2010

The Dallas Morning News reports a former State District Judge from Waco, David Hodges, told the Texas Driver Responsibility Program in Austin that the surcharges assessed after DWI convictions were clogging the Courts.  You can read the article here.

Mr Hodges is echoing the opinion of many criminal defense practitioners who believe the punishments for DWI related offenses have become so harsh that it makes more sense to fight DWI charges than to simply give in and plead guilty.  Although the article also focuses on where the money for the DWI surcharges are spent by the state, it is important to note the surcharges that accompany a DWI conviction.  They are:

(1) $1,000 per year for 3 years following a DWI conviction;

(2) $1,500 per year for 3 years following a 2nd DWI conviction; and

(3) $2,000 per year for 3 years following a DWI conviction where the blood/ alcohol concentration was 0.16 or greater.

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 specific legal advice about your own matters you should consult an attorney. 

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Posted by Jeremy Rosenthal, Esq.

Police and Confirmation Bias

April 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Confirmation bias is a psychological phenomenon whereby people have a tendency to selectively prefer information which confirms their pre-existing beliefs and hypotheses.

Why is this important in criminal law?  Because every case involves investigation in one way or another.  Police officers can and do fall into the confirmation bias trap.

Textbook signs of confirmation bias include ignoring evidence that contradicts the initial impression of the officer and interpreting neutral facts or exculpatory facts as evidence of guilt among others.

Psychologists have conducted studies on confirmation bias.  In one study, test subjects were given fake police files which weakly incriminated a particular suspect.  Later evidence showed that perhaps a second suspect was the culprit and that the original information was false.  Not surprisingly, the subjects fell into several confirmation bias traps.  They rejected evidence inconsistent with the innocence of the original suspect, they viewed neutral or ambiguous evidence as evidence of the original suspect’s guilt, and finally the suspects ignored evidence pointing to the guilt of the second suspect in favor of evidence against the first suspect.

I see confirmation bias all the time from law enforcement during investigations.  You can tell when it’s going on in certain opinion-oriented cases such as DWI when you read an offense report which omits or wholly ignores evidence that contradicts the officer’s findings.  Often times police will take neutral facts (like where they describe a person as ‘nervous’ at a traffic stop) and attempt to spin that into evidence of guilt.  Obviously that is non-sense as many people are nervous when confronted by authority figures like a police officer in uniform — not just criminals.

Dealing with confirmation bias takes a skilled trial lawyer.  Jurors must be educated during jury selection about confirmation bias and be show the practical example of confirmation bias in action when the officer holds firm to his opinion despite all the contrary evidence.

*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 for your own matter you should contact an attorney.

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Posted by Jeremy Rosenthal, Esq.

Intoxication for PI is Higher than Intoxication for DWI

April 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

For the state to convict you of public intoxication, or PI for short, they must prove your level of intoxication is even higher than it would be for a DWI.

Here’s why:  Texas Penal Code 49.01(2) defines intoxicated (in relevant part) 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…”

The above definition of 49.01(2) is the definition used for Driving While Intoxicated in 49.04.

Here’s the difference, though — PI is governed by 49.02 and that code specifically says, “a person commits an offense if the person appears in a pubic place while intoxicated to the degree that the person may endanger the person or another.”

In other words, not only does the person have to be intoxicated (defined by 49.01(2)), but they ALSO must be so to the degree they may “endanger the person or another.”

A simple way of putting it is that to be convicted of DWI, a person must have consumed alcohol to the extent they are dangerous behind the wheel of the car — to get a PI, they must be dangerous merely by being in public.  Obviously it makes sense that there is a stricter standard for operating a motor vehicle.

Public Intoxication cases are class c misdemeanors — meaning they’re lower offenses than DWI.  PI arrests are highly subjective and frankly often done for crowd control reasons or even in cases where the passenger in a car is highly intoxicated (and the driver is getting hooked-up for DWI).  Many officers know that their arrests may very well not end up in convictions, but they feel they are necessary anyway and are supported by the lower burdens of probable cause.

*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 directly consult an attorney.

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