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.

 


Sexual Abuse Charges – Blog 1: The 40,000 Foot View

November 22, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Few topics get more visceral reactions than the mention of sex crimes and charges – particularly when they involve children.

I explain to jurors this is precisely what makes sexual abuse charges a Petri dish for injustice.  They involve very graphic and horrific abuse, if true.  There are highly emotional victims, witnesses, advocates, lawyers and even jurors trying to hash-out highly subjective claims, evidence, and psychology with life-altering consequences.

This is why sex abuse charges are in many ways the ‘wild west’ of criminal law.

Focusing on the Big Picture First

Today I’m starting a series of blogs about sexual abuse cases.  In condensing everything so it makes sense, I’m finding major gulfs between some of the more technical and legal aspects of sexual abuse cases and the clinical, practical and/or advocacy related issues.

There are common threads, patterns and themes which are common to abuse cases which span different types of legal charges and allegations.

For this reason, I think it makes sense to dedicate a series of blogs to the technical and legal aspects of child sexual abuse and then to discuss some of the over-arching common denominators to all of them and finally how we deal with those from the defense’ point of view.

Breaking it Down Further

In sum – I’m going to break down sex abuse law and advocacy into three main categories so hopefully it makes more sense:

Einstein – or the highly technical or legal aspects of sex abuse law;

Motzart – the highly subjective aspects of the often malleable evidence, psychology, and social aspects of the charges; and

Rocky – how we fight and advocate against the odds.

Blog Topics:

Einstein (What the Books Say)

Motzart (The Subjectivity and Emotion)

Rocky (How We Fight)

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


How Can I Defend Someone If I Know They’re Guilty?

June 18, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

If you practice criminal defense you are invariably asked questions by people who simply don’t understand what it is you do.  The questions don’t bother me.  We are all naturally programmed to think in terms of good and evil.  We all view ourselves on the side of good and can’t understand how anyone can cross the imaginary boundary we’ve established in our mind.

1.  How Can You Possibly Defend Someone You Know is Guilty?

When I defend a guilty person, I defend everyone.  If I can make it difficult for a guilty person to be treated unfairly then I’m making it extremely difficult for an innocent person to be treated unfairly.

Besides, not everyone is guilty.

2.  What This Person Did Was Awful.  How Can You Defend Him?

I don’t defend crime or criminal acts.  I defend human beings and their rights.

I defend people whose imperfection is making bad choices and/or hurting people from people whose imperfection is being judgmental.

Another fun way I respond to either of these questions is, “Well let’s just lop their hand off like they do in other parts of the world.”

That usually drives the point home.

*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 this or any other situation you should contact an attorney directly.


The Top 5 Things You Should Do When Stopped for DWI

December 29, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Texas DWI arrests are like snowflakes in each and every case I’ve seen is unique.  Different police officers think differently from one another and there is no one-right way to “get out” of a DWI arrest.  Being cooperative and giving detailed explanations may work with some officers yet others will actually turn your helpful nature against you.  Having seen hundreds of cases,  I can tell you what normally helps and what usually makes things worse.

Here are the top 5 things you should do when being stopped or investigated for DWI.

5.  Be Friendly and Courteous to the Officer (Remember, You’re On Camera!)

A DWI trial is a rare case where the juror actually identifies with the defendant as much or more than the officer.  Jurors, therefore, subconsciously wonder how they would act towards the police in your situation.  The vast majority of jurors see themselves as being polite, friendly and cooperate regardless of how difficult the officer is being or what he asks the person to do.  If you are a jerk or are mean to the officer, not only are you almost certain to be arrested, but the jury will dislike you as well.

4.  Know Your Rights and Exercise them Wisely

You have the right to remain silent and you also have a right to refuse any of the field sobriety tests offered in the field. If you remain silent immediately after being pulled over, though, you’re daring the police officer to arrest you (and I promise he or she will find a reason).  If you refuse the field sobriety tests, your refusal of the tests is not considered “testimonial” in nature and therefore the jury will know you refused the tests.  Again, you run the risk of turning yourself into the bad guy before the jury.

If you’ve been arrested and mirandized then you should absolutely exercise your right to remain silent.  They think you’re guilty and they’ll spin anything you say into confessions of guilt.  Also remember you’re probably being taped the entire time. Don’t initiate conversations with the police in the station or in the police car.

3.  If You Do The Standardized Field Sobriety Tests

There are three field sobriety tests in a standard battery created by the National Highway Traffic Safety Administration (“NHTSA”).  The three tests are the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one-leg stand.  Rather than geek-out on the details of the tests and studies which validate tests which are conducted and graded correctly by the police, I’ll tell you a handful of truths about the tests.

First is if you get arrested — you can be positive the officer will say you failed the tests no matter how well you think you may have done.  This is because officers — even well meaning ones — are biased graders.  If they think you’re drunk when they first pull you over, you can be sure they’ll nit-pick your performance and find just enough fault to justify your arrest.  It’s not dishonesty, it’s being human.

Second — and most importantly — jurors see the field sobriety tests as potentially unfair.  Again, they tend to see themselves in your shoes on the side of the road.  They know it’s an intimidating environment and they also wonder if they could do the tests themselves.  The HGN is a neurological eye test performed and explained by a person who directs traffic when needed… jurors have a hard time understanding or believing HGN.  As for the other two tests, jurors understand knee, back or weight issues make the tests hard… let alone doing the test with whizzing cars, flashing lights, or gusty winds acting as nuisances.

If you take the tests — you should be sure to tell the officer any medical or physical issues you might have which could affect the test.  This could be knee issues, head injuries, back problems, broken bones etc. etc. etc…  You can be assured the officer will let your medical problems go in one ear and out the other — but the jury will get to hear the problem and they will listen.

2.  Be Skeptical of Representations the Police Officer Makes

My experience is police tend to make up their minds very quickly in DWI arrests then focus on substantiating their conclusion.  Police, though, will never admit this and are trained to manipulate you into cooperating by taking additional test and answering additional questions.

Listen to police with skepticism.  Though they could be sincere in wanting to cut you loose or let you call a friend — it’s just as likely they’ve got their fingers crossed behind their back.

“I just want to see if you’re okay to drive,” sounds to the listener like “I’m thinking of letting you go if you do okay on the test” but it isn’t.  Also statements like “honesty goes a long way with me” or “I can’t help you if you don’t tell me whats going on” sound like the officers decision could go either way… but it’s possible the officer has already called the tow-truck.

1.  Don’t Take the Breath Test

Texas Transportation Code Section 724.013 gives a person a right to refuse the breath test.  The police may try to pursue a warrant for your blood, but this isn’t a certainty and they may not do the application properly.

The Intoxylizer 5000 is the current machine used by the State of Texas.  Though I won’t geek out on it in today’s blog, I can tell you the concern of most experts I’ve worked with is it is simply too general.  A person who blows a 0.12 might actually be as low as a 0.05 at the time of driving or as high as a 0.17.

Additionally, jurors tend to understand refusing the breath test even though they might submit themselves.  They’ve head enough horror stories and they honestly don’t know how much alcohol consumption it takes to get them to a 0.08 either.

*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 any specific situation you should contact an attorney directly.


Top 5 Tactics Prosecutors Use to Convict People at Trial

December 29, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s obviously important to know your adversary, your adversaries tendencies, and how your adversary thinks.  Having been a prosecutor, it’s easy for me to place myself in their shoes to analyze how I’d have prosecuted the case against my client were the roles reversed.  Today I’ll discuss the Top 5 most common tactics we see in criminal prosecution I see on a regular basis.

Criminal prosecution is a difficult and noble profession.  The vast majority of prosecutors are honest, hard working and consciences.  The rules are (in some ways) much more restrictive against prosecutors who have extremely high expectations of honesty and integrity whereas a defense lawyer usually has an immediate uphill climb with juries.  While creativity is heralded in criminal defense — it is frowned upon in criminal prosecution (often unfairly).

Though I can easily nit-pick prosecutorial tactics and paint them as unfair… probably none of the techniques I describe below were created or have evolved from malicious intent, rather they were created by advocates who may not fully appreciate the harmful effect some of their tactics may have.

With that out of the way, let’s review the top 5 tactics prosecutors use in trial:

5.  “Liar Liar Pants on Fire”

Proffering a defense in a criminal trial is extremely difficult.  If you think about it, it’s almost impossible to do without a prosecutor being able to accuse your client, his friends, family or anyone testifying on their behalf of being a liar.  It’s really a built-in, automatic rebuttal when someone takes the stand to say “my friend wasn’t drunk we he left the bar” in a DWI trial, or “I was with my husband the time you say he was sexually assaulting the accuser,” or  “my wife bought that scarf three weeks ago from your store… she wasn’t shoplifting.”

What many jurors don’t realize is this built-in tactic is the exact reason we have the right to remain silent.

4.  Spinning a Lack of Evidence, Neutral Evidence, or Evidence of Innocence into Evidence of Guilt For the Jury.

One of the more frustrating techniques I come upon is where a prosecutor infers evidence which obviously points to innocence actually points to guilt.

A common example in DWI cases is where the person looks good on the video… prosecutors frequently argue this is evidence the person has a high tolerance for alcohol abuse.  It’s possible in some cases this argument may be true.  Then again, what they’re really saying the accused person is just guilt regardless of the evidence.  If they look drunk — they’re drunk and if they look sober — they’re drunk.

What about a situation where there are no witnesses such as a mugging in an alley except the accuser?  With little or no corroborating evidence, a prosecutor might argue – it is because of Defendant’s skill at being a good criminal he was able to commit this crime and not leave a trace.

In cases with medical evidence such as sexual assaults — where a forensic exam shows no trauma — prosecutors are very quick to point out this does not exonerate the accused.  It takes positive evidence for the accused and turns it into a “tie” or inconclusive.

Spinning evidence of innocence into evidence of guilt is a recipe for wrongful convictions.  Read the facts of cases from inmates who get exonerated after decades and you’ll see a continual pattern of virtually all evidence being subjective conjecture or horribly flawed eyewitness testimony.  No evidence means no evidence.

What is more upsetting about this tactic is it is really prohibited by the Texas Rules of Criminal Procedure Rule 2.03 (b) which does not allow any officer of the court to “impair the presumption of innocence.”  When evidence of innocence is being spun into evidence of guilt — I’d say that provision is being broken.

3.  Feigned Neutrality 

Prosecutors are taught to cover concepts such as the presumption of innocence, the defendant’s right not to testify, and the burden of proof being very high in their arguments and jury selection presentations.  The cursory discussion has the effect of making them seem even-handed to the jurors.

Like a politician who makes a broad statement he’s for one thing… then promptly does another, a prosecutor talks about the defendant’s important rights briefly and then pays them lip service for the rest of the trial.

Experience has taught me brushing over a defendant’s constitutional rights without any context or explanation is a sure way to have a jury ignore them.

Further, prosecutors are quick to point out they have a legal duty to see justice is done and not pursue convictions.  The problem is this doesn’t exactly square with an adversarial system nor does it adequately account for the human tendency to be competitive.

Many prosecutors have never done any type of work as attorneys except to prosecute.  They only listen to the police version of events.  They’ve never had a parent, spouse, or loved of someone accused cry in their office that all of their rights are being violated.  That dynamic can create an “echo chamber” where they trick themselves into thinking everyone is guilty.

While prosecutors have a duty to pursue justice and not convictions — many simply don’t think anyone arrested is innocent.  The mindset police never arrest an innocent person makes the duty pursue justice very hollow.

2.  Shifting the Burden to the Defendant

It’s virtually impossible for a Defendant to prove they’re innocent of an accusation.  Think of how impossible it would be to prove you’re innocent of making a bad lane change if you were accused of it.  You’d have no video evidence or other documentary evidence supporting your case at all.  You’d only have your word — or the word of a passenger in your car.  That defense is a loser (see #5 above, Liar Liar…).

Prosecutors routinely shift the burden, though, in very tacit ways.  One common method is during jury selection prosecutors will explain Defendant has a right to discovery under the Texas Penal Code and the prosecutor has no such right.  Another is the Defendant has equal subpoena power.

Both statements are true and leave an impression of rules that are even or even turn the district attorney’s office into being victims of an unfair process.

These impressions are highly misleading, however.  First — the accused gets information because (as explained above), the prosecution is charged with proving an affirmative action.  Defendant is not required to prove a negative.  Second, Defendant’s “equal subpoena power” is extremely hollow considering the police and government have virtually unlimited investigatory resources compared with virtually none of the defense.

1.  Lowering the Burden of Proof

This is easily the No. 1 tactic prosecutors use to secure convictions.  Prosecutors are trained to lower the burden on themselves and many of them don’t even appreciate this is what they’re doing.

The burden of proof in a criminal case is “beyond a reasonable doubt.”  This phrase used to be defined for jurors as, “..the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  In 2000, the Texas Court of Criminal Appeals did away with this rule and allowed jurors to define it how they chose fit.

An extremely common example used by prosecutors — especially in DWI cases — is a likening the standard of proof beyond a reasonable doubt to an incomplete puzzle where you can still make out the over-all image (usually of a whale or a handgun).  The prosecutor explains there may be missing pieces, the jurors still don’t have a “reasonable doubt” as to the over-all picture.

Jurors find this explanation simple and highly persuasive but the puzzle is problematic.  It’s flawed assumption is proving a crime is a general proposition… instead of a specific proposition with fine details.  It lowers the burden of proof because you could remove over half the pieces to a picture of a giant whale and still be certain it’s a whale.  But what if instead of a puzzle a case is more like a math equation where we’re missing just one or two key numbers?  The remaining pieces of the equation become worthless because we can’t be sure of the outcome or how to get there.

*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 about any case you should contact an attorney directly.