Will There Be a Video of a DWI Arrest?

July 31, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Probably, it depends on where the arrest took place.

DWI Arrests in Richardson, Plano, Frisco, Allen and McKinney are virtually all video-taped.  Texas law formerly required only larger cities and municipalities to have cameras on squad cars.  The law has since been amended so that all police cars have video cameras.  Some agencies that were not previously required to have cameras may take a bit of time to come into compliance for logistical and/or budgetary reasons.

You should always assume that you are being video and/or audio taped with talking with police.  The tape protects you just as it does the police.  Police reports frequently only highlight the facts which support the officer’s conclusion — that the driver is intoxicated.  The video, though, shows the entirety of the situation.  It exposes when police try to exaggerate their claims on any given case.

Each county has different policies for releasing the video tapes to defense attorneys.  Collin, Dallas, Denton and Tarrant Counties are all fairly easy to work with in attaining videos, however, they are frequently not available to the defense for a month or more after the arrest because the video must go from the agency to the District Attorney’s office — and then a copy must be made for the defense.

*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 situation you should contact an attorney directly. Contacting the attorney through this forum does not create an attorney client relationship and communications sent through this forum are not privileged nor confidential.

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What Happens After A DWI Arrest?

July 13, 2012

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I am frequently asked “what now” after someone is released from jail on a driving while intoxicated arrest.  Though the specific answer may vary depending on where in Texas you were arrested, here are some answers to common questions:

What is My Legal Status?

If you just got out of jail for a DWI or DUI arrest, then you are technically released on bond.  This means have conditions to live by to assure you appear in court (or in certain cases) do not endanger the public.  You will probably not be formally charged with DWI for several weeks or in some cases (usually where there is blood evidence) for several months.  The District Attorney’s office in your county will review the report and decide whether to file a case against you with a document known as an “information.”  In Collin County virtually every case where an officer makes an arrest ultimately gets filed.

What Happens Now?

A DWI is two cases in one.  There are the driver’s license suspension issues and then there are the criminal aspects.

For the driver’s license suspension portion, you must remember you have 15 days appeal any driver’s license suspension issued because of a breath test refusal or failure (score of 0.08 or greater) within 15 days of the arrest with the Texas Department of Public Safety.  These are highly technical proceedings which lawyers commonly handle.  If a voluntary blood specimen was given, then you have 20 days after you receive notice your blood was above 0.08 blood/alcohol concentration.

For the criminal side of the case, you can expect to appear in court for an announcement when the case is filed with the information.  This appearance is more of a work-session between your lawyer than the prosecutor than an actual appearance before a judge (though in some jurisdictions the judge may wish to proceed with technical matters that require you to visit with them).  It is the announcement where your lawyer will have some access to the police report (again, depending on the jurisdiction) and access to the video evidence in the case.

Ultimately, you and your attorney will decide whether you wish to plead guilty to the charges with a plea bargain — or plead not guilty and have a trial.  It is also possible the State may dismiss the case depending various other factors.

Is My Driver’s License Suspended Immediately?

No.  If you were given a document called a DIC-25, then you have a temporary driving permit valid for 40 days from the date of the arrest.  If you appeal the suspension, the temporary permit is valid until your administrative law review hearing (ALR) which could be several months later.  This is the case even if the officer confiscated your driver’s license.

Can I Get This Off My Record?

Yes.  The steps may be different in each unique case, but not guilty verdicts and expunctions are common for DUI and DWI cases.  You should visit with a lawyer directly about how to accomplish this in your case.

*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 situation you should contact a lawyer directly.

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What I Like About Defending DWI Cases Collin County

July 9, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Defending driving while intoxicated case presents a unique challenge to lawyers.  This is because long before entering the courtroom, you can detect a stiff headwind of resistance working against you which lasts the entire case.

You get the sense the legislature, lobbyists and victim advocacy groups, and even many jurors don’t stop to consider whether the police are right when they make an arrest.  Even the news media runs article after article about how if the courts and police were just meaner and tougher on these cases — they would somehow go away.  There is an unmistakable and heavy bias which reaches far beyond whether drunk driving is a problem — and assumes everyone suspected of DWI is guilty.

No one wants drunk drivers on the road.  Everyone’s heart breaks for victims of drunk drivers.  The vast majority of people respect and trust police which is one of the things that makes Collin County a great place to be.  But legislators, activist groups, and police are human.  By their very nature, groups with this degree of moral authority tend to make up the rules as they go along — and therein lies the potential for them to badly hurt innocent people in the name of the public good.

I enjoy the challenge of showing jurors that not everyone caught in the wide-cast-net of DWI is a drunk driver.  I enjoy showing the jury how the framers of the constitution knew the timeless attitudes of accusers, authority figures, and even society’s tendency to rush to judgment.  Most of all, I enjoy the challenge of winning cases where there is a steep up-hill climb with skeptical jurors, difficult police officers, and strict rules limiting our ability to defend the case.

Though I’m probably biased in favor of Collin County jurors, I enjoy trying cases in front of people that live in places like Allen, Plano, Frisco, McKinney and Richardson for the reason they are intelligent and open minded.  Without people even willing to listen — having a fair trial anywhere would be impossible.

*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 situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are any communications confidential or privileged.

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Can A DWI in Texas Be Expunged?

June 18, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Yes.  There are two main ways.

The first and most common way is that you need to plead not guilty and have a trial.  If you are acquitted, and you otherwise meet all the pre-requisites of Tex.Code.Crim.P. Chapter 55, then you will be eligible to have your file expunged.

The second, less common way, is for the statute of limitations to pass (2 years) without the case being on file.  This could be from having your case dismissed by the district attorney’s office, from having a motion to suppress all the evidence granted, or from the police agency and/or district attorney’s office never filing your case after the arrest.  In this scenario, an arrest could similarly be expunged under Chapter 55 of the Texas Penal Code.

Driving while intoxicated arrests cannot be non-disclosed.  This is because there is no possibility of Deferred Adjudication on DWI cases.  Drunk driving cases in Texas tend to be an all-or-nothing proposition that way.

*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 situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications through this forum are not confidential.

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What is a Mistrial?

April 20, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

A mistrial is a declaration the judge makes to immediately halt and end a trial in progress.  Normally a mistrial is declared when a circumstance arises that taints the process beyond repair.  In certain situations, a mistrial can also result in an acquittal of a criminal defendant due to the concept of double jeopardy, but most merely result in the case being reset to a new trial status as if the mistrial had never taken place.

The circumstances which could cause a mistrial are seemingly endless.  More common reasons for mistrials are hung juries (meaning the jury couldn’t decide a case unanimously after a lengthy deliberation), or what is known as a “busted panel” which means after jury selection there were not enough qualified jurors to form a complete jury.  Other common reasons are improper arguments by a party, unexpected or improper comments from a witness, and on some occasions juror misconduct.

A judge has wide discretion to declare a mistrial if there is a “manifest necessity” to declare a mistrial.  Mistrials can be granted sua sponte (the judge declaring the mistrial without either party asking for it), or by either of the parties.

It is legally complex in situations where the Defendant requests a mistrial based on a prosecutor’s conduct during the trial as to whether double-jeopardy will bar retrial.  This is because, as a general rule, courts consider requesting a mistrial as a waiver of double-jeopardy.

The standard today for whether a mistrial requested by the defense should also cause a double-jeopardy bar is from the U.S. Supreme Court case of Oregon v. Kennedy, 456 U.S. 667 (1982) which holds that where the prosecutor baits or goads the defense into requesting a mistrial — then the defendant doesn’t waive double jeopardy by requesting a mistrial.

The easiest way to think about a mistrial triggering a double jeopardy dismissal is like an intentional foul in a basketball game.  One team has the ball and has a clear path to the basket.  In order to prevent an easy basket or layup, the other team fouls.  A prosecutor, thinking they have lost the case, makes a flagrant comment, asks an inappropriate question, or takes some other action to force defendant to request a mistrial so they can have another shot at prosecuting the defendant.  Courts in this situation can end the trial right there and bar the state from re-prosecution (essentially acquitting the accused).

*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 situation, you should contact an attorney directly.  Posts made to this blog and/or communications sent through this forum are not confidential nor subject to the attorney client privilege.  Contacting the author through this forum does not create an attorney-client relationship.

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