The Top 5 Mistakes You Can Make When Hiring a Criminal Defense Lawyer Countdown — No. 4

February 14, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

This week I’m counting down the top 5 mistakes people make when choosing and hiring a criminal defense lawyer.

#4  Hiring Someone Who Only Tells You What You Want To Hear

Sometimes in life we have to choose from a bad option or a worse option.  A lawyer that needlessly sugar-coats your criminal case whether it be a DWI, a theft case, a drug possession case or a felony isn’t doing you any favors.

There’s an age-old legal saying, “he who represents himself has a fool for a client.”  One of the main reasons for this saying is having legal problems is very stressful.  A lawyer should be detached enough from your situation that they can objectively review all the sides of your case.

Every lawyer should fight relentlessly for the optimum result for their client.  I’m not suggesting otherwise.  But your lawyer must also be like a mirror and give you the most accurate reflection of your case so that decisions can be made based on reality — not fantasy.

Lawyers are just like doctors in that we have to have good bedside manners.  This means that a good lawyer is realistic about bad news and can put it in perspective.  Just because there’s a problem doesn’t mean a great goal in the case still can’t be achieved.

Be wary of a lawyer that is afraid or hesitant to disagree with you or tell you news you don’t want to hear when you’re interviewing them.

A lawyer’s ability to give unbiased, detached and unprejudiced advice is a necessity.  It is just as critical as their ability to fight for you.

*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 consult an attorney.

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How Can I get a Police Report After I was Arrested?

February 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Texas law makes it tougher than you might think to see your own police report.  Believe it or not it could be the middle of trial before you’re allowed to see it!

But don’t worry, in Texas state courts it rarely, if ever, happens that way regardless if it’s DWI, theft, assault, drugs or whatever.

The Michael Morton Discovery Act passed taking effect for cases filed after January 1, 2014 require the prosecutors to give your lawyer a police report upon request, though, there are limitations on to whom your lawyer can disclose the report.  You can read more about those changes here.

Two quick points — lawyers look at police reports the same way doctors look at x-rays.  We key in on things you may not notice because they’ll have legal significance.  If you don’t already have a lawyer — consider one.  Second, this discussion isn’t for traffic tickets and municipal fines in Texas though some of the same rules may apply.

Police departments don’t have to give you the report in a criminal case unlike a civil car accident.  Texas Government Code 522.108 is an exception to the Texas Public Information Act for law enforcement in criminal matters.

Many prosecuting agencies like Dallas and Ft. Worth and Collin County currently have “open file” policies meaning the defense attorney has access to the entire file.

And you do have rights in all this.  The Texas Code of Criminal Procedure Art. 39.14 provides that if you show “good cause” to the Court, the Court can order the prosecution to produce a whole laundry list of items from their file prior to trial.  The prosecutor has legal and ethical duties to produce favorable evidence to you.  Brady is generally any evidence which is exculpatory (proves innocence) or which is favorable to the defendant — though the issue is complex.

Again, without legal training and experience as a legal practitioner — getting your hands on a police report can be useless.  If the case is serious enough for you to want a police report, it’s probably serious enough for you to get a lawyer!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Jeremy is designated as a Texas Super Lawyer by Thomson Reuters.  www.texasdefensefirm.com.

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Why You Shouldn’t Represent Yourself in a DWI

February 9, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Here’s why:

DWI Laws Are Nastier Than You Think

The laws against DWI are getting nastier and nastier with no end in sight.  My clients hear me repeat the phrase, “no politician ever got elected in Texas promising to go easy on DUI cases.”

Many people arrested for DWI feel they were wrong and should take responsibility for their mistake.  While this is an extremely admirable trait — it assumes the price for taking responsibility isn’t cruel and thoughtless.

The one thing the legislature can’t take away from you is your constitutional right to an advocate.  It’s the only way to try and level the playing field.

Don’t Assume Your Arrest is a Lost Cause

First, as any prosecutor will tell you, DWI’s can and do very frequently end in acquittals.  Jurors are just like you.  In a DWI they truly presume you innocent unlike other cases.  They listen much to the dismay and chagrin of the prosecutor and the police officer who would have them believe there is only one side to the story.

Scientific Testing are Man-made Mouse-traps

Blood and breath tests can be discredited through different scientific arguments and sometimes you can demonstrate to the jury the test was simply improperly conducted.  The equipment is fallible and jurors are often surprised at just how imprecise these machines truly are.

The practice of blood warrants is controversial.  Forcibly putting a needle in someone’s arm would be a 2nd Degree Felony under the Texas Penal Code (aggravated assault with a deadly weapon) if it weren’t conducted under the color of law.  Regardless, DWI enforcement has lost so much perspective that this practice is justified to solve first-time DWI offenses that are Class B Misdemeanors.

Police Have to Follow the Rules Too

Additionally, Judges frequently suppress improper traffic stops or other improper police contact.  This means that where an officer has been overly-aggressive in finding a reason to pull a car over or the officer didn’t have the right to visit with you… all or some of the evidence may be thrown out by the Judge if improperly attained pursuant to Texas Code of Criminal Procedure 38.23.  In those instances field sobriety tests, breath tests, and even blood tests can be inadmissible for the prosecution.

There is so much at stake in a DWI for your future that a short article hardly does it justice.  I’ve only addressed the tip of the iceberg as far as consequences and punishment.  There is so much other red-tape such as driver’s licenses suspensions, surcharges for driver’s license renewals, and deep-lung-devices being ordered on your car, it hardly makes sense to go into this process alone.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.  He is designated as a Texas Super Lawyer by Thomson Reuters.  www.texasdefensefirm.com.

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What is an Expunction in Texas?

February 7, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

A criminal arrest record can be like the legal equivalent of cancer.  It can cost you a job, a promotion at work, or countless other opportunities.  The damage is done when someone hears about the arrest.  Most aren’t interested in details that you were acquitted or the charges were dropped.

An expunction is the legal equivalent of curing the cancer that is a criminal arrest.  A state district judge orders the records stemming from a criminal arrest destroyed.  This includes records which were part of the arrest or that reference the arrest such as court records, the district attorney’s file, and even transcripts of the trial.  When people refer to having something “taken off” their record, an expunction is generally what they mean.  This also means that the state’s agencies can’t give information about your these arrests to private companies who gather criminal data for distribution for private background checks.  Tex.C.Crim.P. § 55.03(2) even allows for a person with an expunction to “deny the occurrence of the arrest…” in certain circumstances.  The code has specific details you should be aware of for that provision.

What is unknown by most is qualifying for an expunction can be somewhat difficult.  Though expunctions can be highly complex in certain circumstances where (where multiple allegations stem from the same arrest for example) – most are cut and dry.  If prosecution against you has been barred as a general rule, you are probably entitled to an expunction.  Prosecution can be barred where you are acquitted by a judge or jury, where the statute of limitations has expired and the case hasn’t been filed, or if prosecution has been barred for some other reason.

It is a common misconception that getting deferred adjudication ‘magically’ drops the criminal arrest record on it’s own for any offense.  Deferred only entitles you to an expunction for (most) class “C” misdemeanors in Texas.  These are the lowest level of offense, which include traffic tickets and petty offenses ranging from minor in possession, possession of drug paraphernalia, and theft below $50 in value as examples.  Even though you weren’t taken to jail on a class “C” doesn’t mean there isn’t a record either!  An Expunction may still be necessary.

Deferred adjudication for offenses from class “B” misdemeanors and above may entitle you to apply for a petition for non-disclosure which generally limits who can know about your criminal case but is different from an expunction.

An expunction doesn’t happen on it’s own.  A state district judge must approve your petition for expunction.  This is a very technical process and is commonly handled by lawyers.

*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 specific legal advice.  Please consult an attorney for questions regarding this subject matter.

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