What is a Motion to Suppress?

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A criminal defendant can challenge the legality of a detention, a search, seizure or other police tactic which resulted in law enforcement attaining evidence.  If the action is held to be illegal, the evidence is excluded (or suppressed) at trial.

Depending on the facts of any specific case, the suppression of evidence may mean the State’s evidence at trial will be insufficient to sustain a conviction — or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

This provision stems from the Fourth Amendment to the U.S. Constitution and it’s prohibition against unreasonable search and seizures.  Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid.  The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases.  Again, if evidence is attained illegally and it is excluded, the prosecution may lose it’s only evidence as to certain elements of the case.  Where this is the case, they lose as a matter of law.  This isn’t always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained 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 about your own situation you should contact an attorney.

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Texting While Driving — 23 times More Likely to Cause an Accident

March 31, 2010

A recent Virginia Tech Transportation Institute (VTTI) study shows drivers who are texting are 23 times more likely to be involved in a crash than those who aren’t texting.  The study also shows drivers increase risk of a crash by reading (3.4%), applying makeup (3.1%), dialing handheld device (2.8%), or talking on a handheld device (1.3%).  The study doesn’t directly compare texting while driving to driving while intoxicated.

VTTI’s information release can be found here.

Texting while driving is illegal in 18 states and the District of Columbia.  In Texas, texting is illegal while driving for teenagers.  Also handheld devices cannot be used in school zones by anyone.  Some Texas cities are looking at passing local ordinances that could try broaden that law.  Those offenses are class c misdemeanors punishable by a $500 fine.

Currently Texas Transportation Code 545.401 covers reckless driving defined as driving with willful and wanton disregard for public safety.  That offense could conceivably cover texting while driving and is a “hybrid” offense punishable by a $200 fine but up to 30 days jail.

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 about your specific situation you should consult an attorney.

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Occupational Driver’s Licenses for Texas DWIs

March 25, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

What is an Occupational Driver’s License?

In Texas, an occupational license (also known as an ODL) is a temporary permit allowing people to drive while their license has been suspended due to a breath test refusal or breath test failure in a DWI situation.

How Can I Get an Occupational Driver’s License?

An occupational license is attained through a civil petition (basically a civil lawsuit) which a judge must approve.  The Judge can allow someone to drive for 4 hours a day (but can extend that to 12 hours a day upon showing of “essential need.”)  The court order, by law, must contain the times and routes of travel.  Judges can also order other provisions such as interlock devices be placed on cars during the occupational period for DWI cases.

For those with irregular travel due to work (for things such as sales routes), Judges can order log-books be kept in the vehicle.  Also, for the issuance of an occupational license, the State requires you attain what is known as SR-22 insurance.

What is an “Essential Need?”

Tex.Trans.C. 521.241 defines “essential need” as:

“(A)  in the performance of an occupation or trade or for transportation to and from the place at which the person practices the person’s occupation or trade;  (B)  for transportation to and from an educational facility in which the person is enrolled; or  (C)  in the performance of essential household duties.”

Chapter 522 of the Texas Transportation Code covers commercial vehicles.  No occupational licenses can be granted for commercial vehicles.  Tex.Transp.C. 521.242(f).

Occupational questions and qualifications can be very complex and consulting an attorney can save you much time and effort.

Quick References for More Information

The statutes governing driver’s license suspenses and occupational licenses due to intoxication and even marijuana offenses read like complicated flow charts and matrices… but here are some generalities and reference points:

Occupational licenses are governed by Chapter 521 of the Texas Transportation Code, Subchapter L.  Breath test suspensions are governed by Chapters 524 and 724 of the Texas Transportation Code.

*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 in your situation, you should consult an attorney.

 

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What is the Punishment for a First DWI Offense in Texas?

March 23, 2010

All the hype and rhetoric over DWI enforcement in Texas causes people who get arrested to have the expectation of a very harsh punishment — like a felony conviction, having their arm lopped off, or a bright orange DD tattooed on their forehead.

DWI punishment isn’t a walk in the park, but it’s not quite that bad.

A first offense is a class b misdemeanor — which is in the middle of the misdemeanor range.  It’s punishable by a minimum confinement of 72 hours jail and/or a $2,000 fine.  While no lawyer can guarantee you any particular result, statistically the vast majority of convictions on first DWI arrests result in probation.  This means that any jail time assessed may be put off while you complete community service and various other tasks such as a victim impact panel.  There is no deferred adjudication for DWI cases in Texas on any level.

Also if you’re convicted of DWI in Texas for a first offense — you will be assessed a surcharge for three years to retain your driver’s license of $1,000.00.  If you have a breath test result of above a 0.15, then the surcharge is bumped to $1,500 per year.

What I’ve been describing so far are the criminal aspects of a DWI.  The driver’s license suspension for a breath test refusal is a separate, civil matter, but is usually handled in conjunction with your DWI defense.

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 directly.

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The Difference Between DUI and DWI in Texas

March 22, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Every state has laws preventing drunk driving.  Some call their laws DWI (driving while intoxicated) and some call it DUI (driving under the influence).  Texas actually has both, but there is a big difference between the two.

DUI – Minors

Only a minor can commit a DUI in Texas.  A DUI is where a person under 21-years of age has consumed any detectible amount of alcohol and is operating a motor vehicle.  A DWI can be committed by anyone (including minors) who do not have the normal use of their mental or physical faculties due to the introduction of drugs, dangerous drugs, or other substances into the body and are operating a motor vehicle.

A DUI is a Class c misdemeanor meaning it is the lowest level offense and it’s typically handed by a justice of the peace or at the municipal level.  The maximum fine is $500 and there is a big push in those cases towards rehabilitation, community service, and alcohol eduction.  The burden is clearly lower for those cases as the state only needs to show the driver consumed, “a detectible amount of alcohol.”  Both offenses carry possible drivers license suspensions.

DWI – Both Adults and Minors

A DWI is a class b misdemeanor punishable between 72 hours and 180 days jail and/or a fine not to exceed $2,000.  Generally speaking, a DWI is what people are referring to in Texas when they talk about drunk driving laws.

Jeremy F. Rosenthal

(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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