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.

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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Posted by Jeremy Rosenthal, Esq.

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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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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Posted by Jeremy Rosenthal, Esq.

Should You Answer Questions After You are Read Miranda Rights?

February 25, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Criminal defense attorneys will universally tell you no — and with good reason.  Prisons are full of people who wish they hadn’t answered questions.

By reading your Miranda warnings, the police are telling you that they have already decided you’re guilty.

At best, they are telling you that they think their investigation may wind-up with you being arrested so they are “crossing their t’s and dotting their i’s.”

“But I’ve got nothing to hide?!?”

Maybe so.  But there are some bad assumptions you are making with that good faith rationale.

The main problem is that you are trying to convince someone that has already made-up their mind.  That is like trying to convince the vending machine that stole your dollar to give it back.

Also — you don’t know what the police are looking for with their questions and they do.  They may want just one key admission to satisfy a legal element they may already know but can’t otherwise prove.  You may tell them worlds of information they would have never known and now they’ve got a better case against you that they ever dreamed.  They’re happy letting you think you’re winning them over.

Police bank on the fact most of us were raised to respect and cooperate with authority.  But an officer’s job is to investigate crime and build cases against people.  Either they can prove all the elements of a crime or they cannot.  If they’ve got no evidence of certain elements — the only way they can get it is out of your mouth!  There is no advantage to talking with them — and if there is — there is no harm in consulting a 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. This article is not intended to be legal advice.  For legal advice, you should consult an attorney.

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