Should I Take the Field Sobriety Tests?

February 5, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

No.

I’ve put a lot of time and thought into the answer and here’s why I’ve ultimately come to that conclusion:  because experience tells me most of the time the officer has already made his decision to arrest you by the time he asks you to take the field sobriety tests.  So no matter how well you do, you’re not being graded by a fair judge.  You’re being graded by someone who already decided you’re going to jail.

If you’re reading this because you were arrested for DWI and you took the field sobriety tests — don’t feel bad at all about your decision.  It’s a common one and there are plenty of decent reasons to submit to them.  I just feel that in totality — the bad outweighs the good — and I’ve had a lot more time and experience with these cases than you had before you were asked to take the tests!

Most people who submit to field sobriety tests do so for two main reasons.  First, is that they don’t know they have the right to refuse.  In Texas, a person absolutely has the right to refuse.  Second, the person thinks they’ll somehow show the officer that they’re okay to drive (again, what they don’t know is changing the officer’s mind is an impossible task).

Police play into the second reason very heavily.  Remember, deception is a legitimate tool of law enforcement.  Police officers have extremely honed skills at manipulating people to comply with their requests — even though the citizen has no obligation to do so.  Field sobriety tests are a classic example.  Here’s another example — ever been asked by a police officer that just pulled you over if you know why he pulled you over?  It’s a game of “gotcha” and now you can’t fight the ticket if you answered!  When an officer asks you to take the tests to see if “you’re okay to drive,” it may sound like he’s thinking of letting you go — but odds are that it just sounds that way!  Only the officer really knows — and you have no way of knowing if he’s already called the tow truck for your car.

There are some down sides to refusing field sobriety tests too.

First is that you’re basically daring the officer to take you to jail.  Most will take you up on it.  You’re basically gambling that even if he takes you to jail that you’ll be able to beat the DWI in court by not providing any evidence knowing the State has the burden of proof.

Second is that you’re possibly making yourself the” bad guy” in front of the jury by not complying with the police.  Most jurors ask themselves whether they would take the tests or not and even though most don’t have well informed opinions, most would take the tests… but ultimately, being the “bad-guy” can be overcome.

Third is that there’s always the chance that you’ve run into a policeman that hasn’t made up their mind.  It’s probably the exception and not the rule — but it does happen.

Finally is that jurors put more stock in how you look generally on the video than how the officer testifies you did on the field sobriety tests.  If you look good taking the tests but the officer says you still failed — jurors will doubt the officer’s testimony.

*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 specific legal advice about any situation, you should consult an attorney directly.

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Texas Legislature to Consider Deferred Adjudication for DWIs

December 27, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The Texas legislature is likely to discuss legalizing deferred adjudication for first-time DWI arrestees during the 2011 legislative session according to this Houston Chronicle Article.

In Collin County, people accused of a DWI currently have two options;

(1) plead guilty and usually be placed on probation (or in jail) and in doing so accept a final conviction accompanied by surcharges to keep a driver’s license to name just a few punishment measures.  This final conviction would be enhanceable for any subsequent DWI arrest.

(2) plead not-guilty with two possible outcomes; (a) an acquittal entitling them to an expunction; or (b) a conviction along with all the headaches discussed in the paragraph above.

If deferred adjudication is added as an option, it could play-out in a number of different ways.  Though it would technically result in a “dismissal” at the end of the deferred period, it is only an actual “dismissal” in a technical sense.  The person would likely only be eligible for a non-disclosure, not an expunction.  This means it would be on the persons permanent record with the person being allowed to say that even though they plead guilty, it was not a final conviction.

Also another common trap-door the legislature likes to use is by making deferred adjudication a conviction for enhancement purposes.  This means that a subsequent DWI arrest would be a DWI 2nd and so on.  So basically the first one counts against you deferred or not.

Keep in mind that if Mothers Against Drunk Driver’s is for a plan to go ‘easier’ on people accused of DWI — you can be assured it’s for their gain and not 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 specific legal advice about any legal issue you should consult an attorney directly.

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Does the Fact I’ve Never Been In Trouble Before Mean Anything?

October 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

One of the most common questions that I am asked is whether the countless years or decades of a clean-record counts for anything at trial.  The good news is that it does but theres lots to consider.

Texas rule of evidence 404 is a rule which discusses when character evidence is relevant, what limitations are on the types of character evidence may be admitted, and when character evidence may be appropriate.

Generally evidence of “a persons” character is not admissible at all to prove conformity therewith on a particular occasion.  The exceptions, though, tend to swallow the rule.

Tex.R.Evid. 401(a)(1)(A) allows the defense to proffer character evidence of the accused in a criminal case.  The same rule allows the prosecution to attack that character evidence if the defense “opens the door” by injecting character as an issue.

Remember — there are two possible phases to a criminal trial.  Guilt/Innocence and punishment.  Character evidence is wide-open in the punishment part of a trial.  I’m really focusing this article on the trickier part — guilt/innocence.

From a trial lawyers standpoint — proving up good character in the guilt innocence phase is always trickier than it may seem.  Remember that courts only allow evidence through the formal rules which means that good character will almost always have to be proven through a live witness of some sort.  That witness will be subjected to cross-examination… and depending on the facts, your trial attorney will have to do a cost-benefit analysis of whether it is worthwhile to prove-up character in light of the potential cost.

Let’s take a DWI case for example.  Let’s say that a person who was out that evening with the accused would testify that the defendant always calls a taxi if they thought they had too much to drink.  But let’s also say that person drank so much on the night in question himself that he doesn’t remember how much the accused had to drink.  That witness may add value to the case through his positive testimony about the defendant’s traits — but could ultimately hurt the case over-all in light of what he would reveal on cross-examination.

These are they types of decisions experienced criminal defense lawyers, dwi lawyers and dui lawyers must make on a routine basis.

*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 directly consult an attorney about any legal issue.

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Posted by Jeremy Rosenthal, Esq.

How Severe is a 1st DWI?

September 2, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

A first DWI is classified in Texas as a Class B Misdemeanor.  The punishment range is between 72 hours in jail and/or a fine not to exceed $2,000.

The main difference between a Driving While Intoxicated charge and any other Class B Misdemeanor (such as possession of a small amount of marijuana), is that there is tons of red tape and other administrative penalties that come along.

First is that if you’ve been arrested for DWI in Texas, you’re probably also facing a driver’s license suspension for either refusing the breath test or taking the breath test and blowing over a 0.08.  The suspension is not automatic (even though law enforcement likes to think otherwise), but it’s still an additional headache nonetheless.  For a 1st DWI arrest, the driver should be eligible for what is known as an occupational license which allows them to drive during the suspension period for work or essential household purposes in the event the license is ultimately suspended.

Next is that if you’re convicted of a DWI, then the Department of Public Safety charges you an annual surcharge for 3 years in order for you to maintain your driver’s license.  A generic surcharge is $1,000 per year while if your breath test is higher than a 0.15 the surcharge goes to $2,000.  For a second offense the surcharge is $1,500.  The surcharge program has been the source of much controversy lately but unfortunately you still have to deal with it if you’re convicted.

There is no deferred adjudication for Driving While Intoxicated cases in Texas.  People accused of selling drugs to kids and worse can get deferred — but not on DWI cases.

More recently, Texas laws require Judges to order “Interlock” or “deep lung devices” on cars if the accused is convicted and had a blood alcohol concentration of greater than 0.16 while that person is on probation.  The devices aren’t free and the reporting requirements that come along with the devices can be fairly time-consuming and cumbersome.

Now the good news — DWI cases are very fightable and statistics show even in Collin County that people charged with DWI have a lower conviction rate at trial than almost any other offense.  Also, first-time DWI cases rarely result in jail for the accused an instead get probation even if convicted.

*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 case you should consult an attorney directly.

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Texas DWI Laws for Beginners

July 1, 2010

By Collin County Criminal Defense Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

For Starters:

Everyone is presumed innocent and the police and prosecution must prove the case beyond all reasonable doubt… and that goes for DWI’s and DUI’s too.  Accused people are acquitted of DWI in Courthouses all over Texas every day.  Just because the Police believe something does not make it so.

The nuts and bolts:

Texas DWI law can be extremely complicated but we’ll start with the basics.  For more advanced discussions, you can read here, here, and here.

Tex.Pen.C. 49.04(a) makes driving while intoxicated illegal.  That provision says, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”

Tex.Pen.C. 49.01 (A) and (B) define “intoxication” as… “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or  having an alcohol concentration of 0.08 or more.”

A first time driving while intoxicated charge is a class b misdemeanor with a minimum of 72 hours of jail and a maximum of 180 days; and/or a fine not to exceed $2,000.

Punishment

You can read more about DWI punishment in Texas here.  A big point with DWI’s is that there is no deferred adjudication in a DWI case, meaning that in any case where the charges are pursued — it will result either in an acquittal or a final conviction.  There is no middle ground.

Also, the legislature has made it a class a misdemeanor even for a 1st time offense if the blood alcohol level is tested at or over 0.15.

Driver’s License Suspension

Under the Texas Transportation Code, your Texas driver’s license can be suspended for up to 180 days for refusing a breath test or 90 days for taking and failing the breath test.  The police won’t tell you this — but the suspension is not automatic.  You have typically 15-days to appeal the suspension.  Even if your license is suspended, you may be eligible for an occupational driver’s license which would allow you to drive for various reasons including work and household purposes.

Surcharges

If you are convicted of a DWI in Texas, you will be required to pay money for three years after your conviction to maintain your driver’s license.  For a first DWI the surcharge is $1,000 per year; for a second DWI the surcharge is $1,500 per year, and if your breath test result is greater than 0.16 or greater, the surcharge is $2,000.

My Aggressive Stance

There is generally little, if any, reason to not be aggressive in attacking these cases.  The Texas Legislature is continually making laws on DWI and DUI harder and harder and harder.  For that reason it is often the case that we don’t have anything to lose by taking a stand and fighting these charges.

When choosing a lawyer for defense of a drunk driving charge, be sure to ask how often that lawyer takes cases to trial and what they do to prepare.

*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 specific situation you should consult an attorney.

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