When an Interlock Ignition Device is Required for a DWI – and When it Comes Off

January 10, 2021

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

The blow devices to start your car (also known as “deep lung devices,” “DLDs,” or “Interlock Ignition Devices”) have been one of the most major developments in DWI cases over the last 15 years.

The Texas Legislature and courts have been increasingly requiring them in impaired driving cases.  In some circumstances they can be ordered to be placed on your car immediately after an arrest and can remain on the vehicle even after a person finishes probation years later.  The legislature has even incentivized folks to get interlock devices by offering benefits such as non-disclosure eligibility if someone voluntarily keeps one on their car during probation when they otherwise wouldn’t be required to keep one.

Possible Times when a DLD Can Be Ordered By A Judge

 

As you can see, the case has many times where the interlock can be ordered onto the car by the Judge.  Many of these time periods can and do run consecutively and over-lap meaning the interlock may simply stay on from the point a person gets it onto their car until the case is finished.

Ignition interlock providers claim it can only be removed by court order and have this provision in their service contracts… so they typically won’t even remove the device unless or until they see a court order.

What if You Don’t Drive Anymore or Can’t Have the Interlock for Some Other Reason?

Most judges will allow you to substitute a hand-held device for an interlock device though I’ve not found any support in the code for this.  If you have questions or need an alternative or to substitute the interlock device then speak with your lawyer.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.


My Lawyer is Not Fighting For Me….

January 7, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Your lawyer is fighting for you.  At least I hope they are.

What Your Lawyers Job Is – and Isn’t

A lawyer has a duty to zealously advocate for their client.  A lawyer cannot, though, just go bananas for the sake of going bananas.  Lawyers have other duties which often compete with their duty to zealously advocate for their client.

Here is a relevant passage in the Preamble Texas Disciplinary Rules of Professional Conduct:

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client’s affairs and reporting about them to the client or to others.

Note zealous advocacy is sandwiched between other roles of the attorney.  The lawyer also has to give the client an informed understanding of their rights and obligations.  The lawyer must seek advantageous results consistent with the honest dealing with others.

Fighting for and advocating for a client is only a fraction of the lawyer’s job.  Much of the lawyers role is informing, educating, and advising clients.  Also, much of a lawyers job hinges on ethical obligations to judges and other lawyers… our system wouldn’t work if everyone got to go berserk.

A lawyer’s job isn’t to tell you everything you want to hear, either.  Many times folks will understandably want to shoot the messenger.

Giving Your Lawyer the Benefit of the Doubt

I’ve had many clients over the years who like seeing or thinking I’m being aggressive.  But not every situation calls for aggressiveness…. and just because the client thinks I’m not being assertive, zealous, or aggressive doesn’t mean I’m not either.

Often folks looking to switch lawyers will visit with me – and I always make an effort to try and see the situation their lawyer’s way.  That lawyer usually knows much more about the case than I do to that point and it’s arrogant of me to think otherwise.

When You Should Worry About Your Lawyer’s Efforts

First – you should be comfortable with direction of your representation.  If you can’t sleep at night worried sick about your lawyer and nothing they do or say helps then by all means find another lawyer whose representation you’re more at ease with.  Again, though, it’s not your lawyers job to tell you only news you like or that you want to hear.  It’s probably a worse mistake to shop, and shop, and shop for a lawyer until you find someone who magically agrees with everything you say.

Some lawyers can be intimidated by certain cases.  Is your lawyer constantly looking for reasons to back down?  When your lawyer does shy away from a difficult hearing, trial or other proceeding – do they have a detailed reason which makes sense?  In criminal cases – how often does your lawyer go to trial?  If it’s not on a regular basis then maybe that is a red flag.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 


Will a DWI Ruin My Life?

January 6, 2021

By McKinney Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Driving while intoxicated convictions are very intensive with consequences that are far ranging.  Most of the consequences are what lawyers and courts refer to as “direct” consequences.  This means we know what those consequences are and we can see them coming.

Indirect consequences are much more difficult to calculate.  An example of a direct consequence of a drunk driving conviction is the potential for probation or an interlock device on a car.  The law requires it.

An indirect consequence, on the other hand, is what will your boss think.  That’s the hard part to know.

Common Direct Consequences of a DWI Conviction

The punishment for a Driving While Intoxicated Offense in Texas is This:

  • Up to 2 years probation for misdemeanors (DWI 1st or 2nd);
  • Up to 180 days jail for DWI 1st with blood alcohol under (BAC) 0.15;
  • Up to 1 year of jail for DWI 1st with BAC 0.15 or greater;
  • Up to 1 year of jail for DWI 2nd;

Other requirements for DWI probation (direct consequences) are the inability to terminate probation early, the requirement for interlock devices for DWI 2nd or more or if the BAC is greater than 0.15.  There is a new “superfine” the legislature requires if a person is sentenced to jail on a driving under the influence case of $6,000.

Indirect Consequences Which Can Be Harmful to a Career

There are certain professions where a DWI affects you and some where they don’t.  If you drive a school bus then a DWI is bad news.  If you are law enforcement or a first responder, then again – it will cause you problems.  Pilots obviously have major headaches with DWI arrests with the Federal Aviation Administration (“FAA”).

But what if you’re a doctor or a registered nurse?  You could have licensing issues because the boards which regulate physicians and/or nurses in Austin will want to make sure there aren’t underlying substance issues.

There are some professions which simply don’t have much of an intersection with DWI arrests.  If you are a CPA, a hairdresser, or even an attorney – a misdemeanor DWI shouldn’t do you much professional harm.

But remember a criminal conviction is permission for someone to discriminate.  Is it possible you could lose a job working at a bank because of a DWI arrest or conviction?  I would hope not – but if your boss was a victim of a drunk driver then potentially it could happen.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 


Can My Lawyer Lie to Me?

January 4, 2021

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Your lawyer can absolutely never lie to you.  Texas Rule of Professional Conduct 8.04(a)(3) says a lawyer cannot, “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  If your lawyer has lied to you then they’ve broken this rule.

The Texas Disciplinary Rules of Professional Conduct is modeled off of other national and state model rules — and I’d be surprised if any other State didn’t have similar honesty or candor requirements.

Instances Where Disciplinary Rules Require Honesty in Specific Situations:

  • A client is entitled to straightforward advice expressing the lawyer’s honest assessment.  Rule 2.01, Comment 1.
  • A lawyer is required to give an honest opinion about the actual consequences which appear likely to result from a client’s conduct – particularly in regard to potential future criminal actions of a client.  Rule 1.02, Comment 7.
  • A lawyer cannot make a legal argument based on a knowingly false representation of law.  Rule 3.03, Comment 3.
  • A lawyer should deal with a non-adjudicative proceeding honestly as if it were a courtroom setting.  Rule 3.10, Comment 1.
  • Lawyers are required to report professional misconduct which raise questions as to other lawyer’s honesty, trustworthiness or fitness to practice law.  Rule 8.03(a).

And there are even more examples in the rules.  As you can see – lawyers have honesty and integrity drilled into their heads in law school and after.

Honesty, Tactfulness and “Bedside Manners”

The attorney-client relationship is also founded upon trust.  Folks who come to my office have to trust me.  Part of developing that trust is showing basic decency and honesty.  If I agreed with every single thing a prospective client told me as far as their opinions, views and concerns about potential outcomes – they’d probably smell a rat.  They know I’m being honest when I dig deeper into their issue which often involves correcting a misimpression they may have about something.

What many lawyers struggle with is not honesty but tact.  Tact is the ability to deal with others on sensitive issues.  “Bedside manners” is another term for tactfulness in my view — referring to a doctor’s ability to deliver bad news in a constructive, compassionate and more meaningful way than just flinging it at the patient.

I’ve spoken with many people over the years who want to ditch their lawyer because their lawyer made them panic unnecessarily.  I always hate hearing that and I often do my best to steer the client back to that lawyer give them another chance.

I’ve learned many lessons over the years about how to constructively deliver news or thoughts my client might not want to hear.  My hope is even though the news may not be the best – it can at least help fortify the attorney-client relationship I have with my client.

Dishonesty

There is just no room for it in legal representation.  It degrades the attorney-client relationship and sets up unrealistic expectations which usually don’t get met.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is currently designated as a Super Lawyer by Thomson Reuters.


Domestic Violence Charges – Blog 13: The Duluth Model and Reciprocal Intimate Partner Violence

December 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“The Duluth Model” is the current prevailing theory of domestic violence by law enforcement in the United States.

Its origins are from Duluth, Minnesota and was based on a treatment program run by Ellen Pence, a self proclaimed activist.

The “Cycle of Violence”, “Power and Control Wheel”, and “Batterers Intervention Program” are some of the staples of the Duluth Model in action.

You can read other blogs and the index to my continuing series on defending domestic violence cases here.

The Cycle of Violence

The Cycle of Violence was developed by Lenore Walker in 1979 based on 120 battered women.  She believed in three phases:

  • Tension Building Phase
  • Acute Explosive Phase
  • Honeymoon Phase

Her theory is an abuser causes the relationship to build tension which makes the victim  “walk on eggshells.”  The acute explosive phase is where the violence and abuse occurs and after this there is a honeymoon phase where the abuser apologizes, promises change, and goes out of their way to re-attract their mate.  This of course gives way again to another tension building phase and so on according “the cycle.”

Assumptions the “Cycle of Violence Makes”

It Assumes Domestic Abuse Within a Relationship is Unilateral

The cycle of violence assumes the abuse is unilateral and not reciprocal.  But studies have shown alarming rates of “Reciprocal Intimate Partner Violence” whereby both intimate partners at times are aggressors and at other times are victims.

It Presumes Guilt

The “Cycle of Violence” seems to have been created as a tool for treatment and therapy – not for the diagnosis of domestic violence.  When using it to attempt to prove guilt – it actually presumes guilt as an underlying assumption.

If you replace the very top assumption with its opposite – Defendant is innocent – then absolutely none of the other phases make logical sense.  But this diagram shows how the echo-chamber logic is circular in the first place.

 

Mental Illness & Substance Abuse Also Cause Domestic Violence

The Duluth Model holds, essentially, manipulation control and power are the root causes for domestic abuse.  But other contributing factor of domestic violence, as anyone who defends these cases on a regular basis will tell you, are anxiety, depression, and other mental illnesses such as psychosis.  Not far behind as contributing factors are substance abuse.

“Evidence Flipping”

Much of the problem with highly subjective echo chamber concepts such as the cycle of violence is the ability for the prosecution to take any evidence whatsoever and flip it into evidence of guilt.

Is buying your spouse flowers a confession?  This is what a prosecutor would argue is the “honeymoon” phase.  If this were true, though, then every florist needs to contact the police every time someone makes a purchase.

Is every instance of tension in a marriage evidence of “the tension building phase?”  If this were true, every marriage counselor would have the police on speed-dial.

Other Criticism of the “Duluth Model”

The Power and Control Wheel

The “Power and Control Wheel” is a similar diagram to the cycle of violence.  It differs in that it purports to describe the methods of power and manipulation the abuser uses to control the victim.

The criticism of the Power and Control wheel over-lap with the criticism of the Cycle of Violence.  It assumes the physical abuse in a relationship is unilateral.  It presumes guilt.  It, too, largely ignores mental illness and substance abuse as underlying factors – and proscribes power as the main motivator between an abuser and the abused.

The Countervailing Theory – Reciprocal Intimate Partner Violence

Reciprocal Intimate Partner Violence, also called mutual violence and/or symmetrical violence holds both intimate partners have been aggressors at times and both have been victims at times.  Again, this directly undercuts the Duluth Model which presumes the abuse to be unilateral or one-way.

Studies have shown “reciprocal” violence to be between 42% and 70% in relationships where there is domestic abuse.  In a 2007 study published in the American Journal of Public Health, concluded roughly half of abusive relationships fit this profile.  The same study shows it was actually women who were thought to be the aggressors 70% of the time, however men inflicted more physical harm to their partners.

If the Duluth Model is Wrong Half of the Time – Then So What?

It’s important because the prosecution can be very heavy handed in the way they attack a case with the Duluth Model.  It includes their potential misconceptions about the reality of the relationship of the couple which can skew and make the potential punishment not only unfair and inequitable – but also not assist the couple with the real underlying dysfunctional issues.

From a defense perspective – it also opens the door to defenses such as self defense and consent when we break the misconceptions the Duluth Model may inject.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.