How the Police Take Your Blood Without Your Consent

February 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Courts allow police to apply for search warrants for mandatory blood draws.

A warrant, in theory, is a precise legal document which explains to the judge or magistrate reviewing the warrant why the police believe it’s likely evidence of blood over 0.08 will be present in your system.  In practice, however, police utilize one-size fits all warrants with boilerplate language.

A recent U.S. Supreme Court Opinion, Missouri v. McNeely, has in all likelihood invalidated Texas law which allowed for warrantless blood draws on felony DWI arrests.  Thus, the only way a blood draw without consent can be done is through a warrant.  In McNeely, the courts held the process for applying for blood warrants has become so simplified that only if there is exigent circumstances may an officer proceed without a warrant.

Books have been written about search warrants so I can’t cover them all here — but as with many things in the law, it’s complicated.

With a DWI blood warrant, the judge allows the police to draw your blood.  If you are in that situation, then you must comply with the officer’s instructions.  Your remedy is to fight the search in court later.

There are all sorts of legal problems with DWI blood warrants in Dallas and Collin County.  Arguments can be made the the practice breaks or comes close to breaking several other statutes and laws.

The Texas Transportation Code Section 724.103 states, “…a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”  This language can be argued to be in conflict with the search warrant statute.

Texas Code of Criminal Procedure 14.06 suggests that when someone is arrested, the officer shall take the person arrested before a magistrate “without unnecessary delay.”  Where the police hold someone while they take 30 minutes or an hour to get a search warrant, it can be argued they violate this provision too.

Blood warrants and draws are a complicated area of the law.  It takes a detail oriented lawyer to be able to analyze the medical and legal issues behind proper blood draws and the underlying science.

*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, please 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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Posted by Jeremy Rosenthal, Esq.

They Didn’t Read My Miranda Warnings — How Does it Affect My Case?

February 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

I’m often told by people that, “they didn’t read me my Miranda warnings.”  Sometimes this is important and sometimes it is not.

What Are Miranda Warnings?

Miranda refers to a 1960’s U.S. Supreme Court case where a conviction was reversed because the police did not advise a Defendant of his rights prior to getting confessions for several offenses.  I’ll spare you the legal treatise on the topic but just understand it’s a highly complicated area of law.

The Significance of Miranda Warnings

Miranda violations can result in excluded statements, admissions or confessions a person may make while in custody.

Your right to remain silent and your right to a lawyer are generally triggered when you are in “custodial interrogation” and you are being questioned by the police or other governmental agency.  Custodial interrogation is too complicated to go over in this brief article but I will say that a typical traffic stop will not qualify as custodial interrogation under the current law in Texas.

Texas has codified Miranda in Article 38.22 of the Texas Code of Criminal Procedure.  That statute has additional protections above and beyond what Miranda required.  An example of an additional protection is that to be used, an oral confession must be made in the presence of some sort of electronic recording device.

To know how significant a Miranda violation is depends on the facts of the case.  

A hypothetical Miranda violation occurs where someone is handcuffed in the police station under a spotlight with interrogators and admits to a crime.  In that situation, failure to Mirandize someone might result in the confession being tossed-out by a Court.

Obviously real life doesn’t work that way and a Miranda violation may be more subtle or less significant.

Take a DWI for example.  Most of the State’s case will be conduct,  breath, and performance on field sobriety tests.  These things are considered “non-testimonial.”

Even if the police violate Miranda and the person confesses to having consumed alcohol but doesn’t believe they’re drunk — the Miranda violation will have little, if any, impact on the outcome.

Contrast a drug possession case.  In those cases, sometimes the only evidence someone was in possession of contraband such as marijuana are statements or confessions after the drugs are found.  If an officer violates Miranda before a confession is given, the violation may very well change the outcome of the 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 is intended to be legal advice.  For legal advice, you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Punishment for a 2nd DWI in Texas

February 22, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Convictions for DWI’s are like stacking bricks higher and higher.  To recap, a first DWI is a Class B misdemeanor in Texas.  A second DWI is a Class A Misdemeanor.  The punishment range is between 72 hours of jail and 365 days, an/or a fine between $0 and $4,000.

A 2nd DWI means that you’ve been convicted of the first — regardless of how long ago that may have been.

Like a 1st DWI, probation is often the result of a conviction for a 2nd DWI — but clearly there is more jeopardy involved in a 2nd offense.  The maximum probation is 2 years and the probation itself gets stickier.  For example, in Texas we have what is called jail as “a term and condition” of probation.  What this means is that the Judge can send you to jail for up to 30 days as a part of your probation.  The minimum community service for a 2nd DWI is 80 hours.

Additionally, the Judge is required to place an interlock device on your car when you are originally released on bond from jail in the case while you await trial.  You can expect it to stay on during probation with a conviction.

As for driver’s license suspensions — the term of the suspension increases to 2 years (from the max of 180 days).  A person can qualify for an occupational license to assist them in driving to work, however, if the 2nd DWI was within 5 years of previous law enforcement contact involving alcohol, then the person doesn’t qualify for the occupational for 180 days after the suspension begins.  This is what DWI lawyers in Dallas and Collin Counties call a “hard suspension.”  It means no driving for six months.

Also the surcharge is $1,500 per year for 3 years.  Again, the surcharge is $2,000 for a breath test score over 0.16 for 3 years.

In Texas, some County Courts at Law have DWI programs for 2nd time DWI convictions.  In Collin County they have courts with intensive treatment but that offer some incentives to join the program such as lesser fines.

*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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Posted by Jeremy Rosenthal, Esq.

What is the Result or Punishment for a 1st DWI in Texas?

February 22, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Dallas and Collin County where I practice, DWI’s are statistically very winnable.  Today’s blog, though, deals with what happens if you plead guilty or are found guilty at trial.

A first DWI in Texas is a Class ‘B’ misdemeanor.  A first DWI conviction in Texas is not a felony.  Even as a misdemeanor a conviction stays on your criminal record forever.

The punishment range for a Texas DWI is between 72 hours an 180 days of jail and/or up to a $2,000 fine.

Don’t panic!  That time is usually probated — meaning you’re on probation for DWI and only if you violate your probation do you look at going back to jail.  I can safely say in my experience as a prosecutor and a DWI defense lawyer the vast majority of persons arrested for DWI spend no time in jail after their original arrest.  Of course, no lawyer can guarantee you any result.

With the punishment range as it is, your lawyer must admonish you that it is legally possible for you to be assessed 180 days and a $2,000 fine.  This is not to minimize the consequences, but most experienced DWI lawyers in Dallas and Collin Counties will tell you that result is highly unlikely.

You should also be aware that if you’re convicted of DWI and your breath test result was a 0.15 or above, you’re legally required to have a deep lung device installed on your car for at least half of the probation period.

Beginning in September, 2011, a DWI with a blood alcohol concentration above a 0.15 is now a class A misdemeanor punishable by up to a year of jail — again — typically probated.

Also there is a surcharge for renewing your driver’s license of $1,000 upon conviction for 3 years following the conviction.  The surcharge goes up to $2,000 per year if your breath and/or blood is a 0.16 or higher.

*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 please consult an attorney.

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