The Importance of Trial Advocacy and Trial Skills

December 29, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

I don’t write much about trial advocacy because I think most people who happen across my blawg are probably more interested in other nuts & bolts legal topics.  Experience, comfort and skill in the courtroom is extremely important stuff, though.

I can safely say I spend more time honing my trial skills than any other type of other continuing education available.  This is in part because it fascinates me and, frankly, it’s my trade.  I like to think of myself like a basketball player who works every day after practice on nothing but free-throws, dribbling to the left, or shooting threes.

On my bookshelf you’ll find books about jury psychology, cross-examination, and persuasive rhetoric.  I devour jury studies, psychological studies, and other data which I feel help give me an edge in trial.

Trial is the fascinating competition between two (or more) parties trying to re-create an event in the most persuasive way possible.  Preparing for any trial is like composing a tune or in some cases — a symphony.  There are many small components which have to neatly and seamlessly fit together all aimed at not only telling the more persuasive story, but convincing a judge or jury to be motivated to act on your cause.

In all my trial work and through all my experience I have come to one conclusion about successful trial work:

The will to win is the will to prepare.  The harder I work, the luckier I get.

Television and the movies make us think there are a handful of gifted mouthpieces that can magically show up and enchant a jury regardless of the facts.  The most talented actor in the world can’t prepare for a few hours then take the lead in a broadway show.  The most gifted athlete can’t sit on the sofa all week then lead his team to a playoff win.  Why would it be any different for a lawyer born with the gift of gab taking on a trial with little or no preparation where the results truly matter?

Trial advocacy is extremely important in criminal defense.  It never ceases to amaze me how creative and talented many of my colleagues are at trying cases.  At the same time, I’ve watched many trials on the sidelines watching through my fingers at how badly the lawyers have prepared.

Do yourself a favor when you are picking a lawyer for your criminal case — ask them how often they try cases, ask them how much they study trial advocacy, and ask them what they do to prepare for trial.

The answers should be extremely revealing.

*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 advice about any situation you should always contact an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.

 

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Do I Need a Lawyer for a DUI?

December 16, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Yes.

In Texas our legislature, law enforcement, and many prosecutors know of only one way to deal with Driving While Intoxicated.  To be as mean as possible.  Even if drunk driving is at record lows, they figure the only way to keep driving the numbers down even further is to get progressively meaner and meaner.  Of course, they can’t actually prove getting meaner actually works.   But you are fighting a harsh, unsympathetic law enforcement machine designed to break your pocket book, label you forever, and in some cases humiliate you in the name of public safety.

Even though a first DWI is a misdemeanor in Texas, it almost acts like a felony in some ways, or as I put it, it’s a misdemeanor on steroids.  There are generally driver’s license suspensions, deep lung devices that can be put on your car which can be humiliating, and thousands of dollars in sur-charges to keep your driver’s license on a 1st DWI arrest.

Texas has progressively harshened their drunk driving laws.  The legislature has addressed intoxication offenses during every single bi-annual session since 1993.  The most recent changes allow for people to be charged with a class A misdemeanor if someone’s blood/alcohol concentration is greater than 0.15 at the time they are tested.

Texas law enforcement agencies have aggressively been pursuing involuntary blood draws of suspects if the increased punishment weren’t enough.  Many agencies in Texas have began introducing “no refusal weekend” policies, which means that if a suspect refuses a breath test, the police merely fax a cookie-cutter warrant to a judge on call.  If the judge signs the warrant, then the person’s blood is taken without their consent.  In the words of Richard Alpert, Assistant District Attorney in Tarrant County and one of the lead intoxication offense prosecutors in the State, “If it bleeds, it pleads.”

So you can see, Texas’ mentality with DWI enforcement is that “you can’t make an omelette without breaking some eggs.”

But you’re not helpless.  Whether you made a mistake by getting behind the wheel, or whether the only mistake you made was running into a manipulative officer having a bad night… you don’t need to let yourself be thrashed, broken, and humiliated.

There are countless ways to defend DWI cases ranging from the legality of the stop in the first place, to the intoxication aspects, and even some of the smaller, over-looked elements to the case.  Even if the case is extremely difficult, the help of counsel can assist you in lifting at least some of the heavier punishments from these laws.

Just because the prosecutors, police, and legislature says it’s justice doesn’t make it so.

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

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The “Public Place” Requirement of DWI Law — How it Really Doesn’t Matter Anymore

November 18, 2011

By  Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code 49.04(a) is Texas’ DWI law and states, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”

“Public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.  Tex.Pen.C. 1.07(40).

Obviously when the Texas legislature wrote the drunk driving law, for whatever reason only they truly know, they wanted to omit places that weren’t public… i.e. private places.  My guess (and that’s all it is) is that the legislature probably wanted to preserve Texan’s ability to consume alcohol while engaging in sport such as hunting or fishing on private property.

The Courts of Appeals have essentially written the “public place” requirement out of the law over time.  Today, the language of Tex.Pen.C. 1.07(40) is virtually meaningless.  A handful of legal opinions over the years address the issue of whether a place is “public” for the purposes of DWI.

A 2009 unpublished opinion, Campos v. State, 2009 Tex. App. LEXIS 7487 (Tex.App.– Austin, 2009), sums up how this provision has been effectively eliminated.  I’ve included Campos’ internal citations so you can see how the logic has been patched together over time:

“…Texas courts have held that even areas that strictly limit public access may qualify as public places. When determining whether an area is a public place, the relevant inquiry is whether the public or a substantial group of the public has access to the place in question. Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994); Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.–Fort Worth 2003, no pet.). The level of access does not need to be complete or entirely unrestricted, provided members of the public could gain access under the right set of circumstances. See State v. Gerstenkorn, 239 S.W.3d 357, 359 (Tex. App.–San Antonio 2007, no pet.) (holding that gated community “with a security guard and limited access” was public place); Woodruff, 899 S.W.2d at 445 (holding that street in Air Force base was public place). Indeed, “[a]uthority exists for the proposition that ‘if the public has any access to the place in question, it is public.'” Woodruff, 899 S.W.2d at 445-46 (quoting 6 Michael B. Charlton, Texas Criminal Law ß 1.6 (Texas Practice 1994)…” Emphasis added.

For our non-legal experts at home, let’s dissect this just a bit more.  You can see there have been several cases which have addressed the issue.  And in each case what has happened is that the Courts of appeal have nit-picked the facts to declare places where the defendant was arrested as “public places.”  So we have a gated community is now a public place (Woodruff), then an Air Force base is a public place (Gerstenkorn)… and on and on…  Finally the Court declares, that anywhere a member of the public could gain access under the right set of circumstances (a ridiculously over-broad and subjective phrase), can be a public place.

Under the right set of circumstances… Really? … let’s think about that for a minute.  If we flip the phrase around and ask ourselves what types of places are private… are there any places that even qualify under that standard?

— A 200 acre fenced-in deer lease?  It’ a public place because ‘under the right set of circumstances’ a member of the public could gain access by being invited on or getting lost;

— A fenced in golf course?  It’s a public place because ‘under the right set of circumstances’ someone could pay money and operate a motorized golf cart (or an employee drive riding lawnmower);

— The star on the middle of the field at Cowboy’s Stadium in Arlington?  Well, ‘under the right set of circumstances’ a member of the public could drive a car with Roger Staubach in the back waving to the crowd… so now even that’s a “public place.”

Didn’t the definition under 1.07(40) say a public place is a place where “a substantial group of the public.. has access?”

Presto chango!  Through slight-of-hand, a “substantial group” of the public changed into “any” member of the public… and all in the name of public safety and law enforcement.  So, in summation, there isn’t a place anywhere in the State of Texas that a court can’t declare “public” if the DWI facts make them mad enough regardless of the wording of the Texas Penal Code.

*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 issue, you should contact an attorney directly.  Contacting attorney through this blog does not create an attorney-client relationship.  Information communicated to attorney through this blog is not confidential.

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Defending Blood Draws Versus Defending the Breath Test

November 16, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

There are many strategies to specifically attack either a breath or blood result, but today I’m going to compare blood and breath samples very generally.

Generally speaking — the most vulnerable aspects of either test is due to the degree that a human can either intentionally or negligently effect the outcome.

Jurors tend to have a bit of a natural skepticism against the science and technique regarding the breath test, but jurors unfortunately don’t scrutinize blood tests quite the same way.  On the other hand, the process for administering the breath test is ‘idiot proof’ whereas the procedure for taking, shipping and testing the blood is filled with human contact.

The Breath Test

The breath test is based on extracting the alveolar breath from one’s deep lungs.  That breath sample has to (1) come from the deep lung in the first place;  then (2) travel through the lungs, esophagus, and mouth, through a tube on the intoxylizer machine, and into a test chamber roughly the 1/3 the size of a coke can.  Pollutants which contain hydroxyl molecules at any place can corrupt the sample.  But, compared to the blood test, the breath test is scored right on the spot.  The operator of the breath test machine needs very little training and experience to administer the test — and they should not be able to affect the test.  If the operator makes a mistake, chances are that the machine will invalidate the result or that it will be revealed on the video of the test being taken.

Blood Draws

Challenging the chain of custody and the testing of blood can be very frustrating.  This is because the person drawing the blood, the people processing and sorting the blood samples at the lab, and the lab technicians simply don’t remember YOUR specific blood test.  Places where blood is drawn and the labs that test them are mills where they process 20, 30 or 100 different blood samples any given day.  But don’t worry — they’ll be sure to testify at trial that they never make mistakes when they draw the blood, put it on the carousel to be tested, or process it in the mail room.  The manufacturer of the blood vials puts in powdery chemicals into the vial to preserve the blood specimen.  Again, challenging the amount or quality of the chemicals can be like howling at the moon in front of a jury.

A recent opinion from the U.S. Supreme Court, Bullcoming v. New Mexico, at the very least allows defendants the opportunity to cross examine the personnel that test the blood.  In addition, it contains a far more in depth discussion of blood draws and is worth the read if you are interested.  Prior to Bullcoming, prosecutor’s were able to simply proffer a sheet of paper with the blood result which is impossible to cross-examine and a spokesperson to talk about the underlying science.  Jokingly, it is not much different that calling the receptionist at the lab who just tells the jury that in her experience “everyone is guilty.”

A Must if You’re Challenging Either Breath or Blood

Challenging the blood or the breath test, though, can only be done when the jury is told over and over that it is impossible to show where some scientific test went wrong — only that the result can’t possibly be right.  Jurors tend to have the expectation that someone can go back into a lab or into a breath test machine, recreate the exact circumstances, and prove exactly where a test went wrong.  But a good DWI trial lawyer needs to debunk that expectation and demonstrate to the jury that you can tell, for example, that a clock is wrong not by examining it by the finest timekeeper in switzerland — but because the clock says it’s night time and the sun is out.

*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 on any topic, you should consult an attorney directly.  Contacting the attorney through this blog does not create an attorney-client privilege and communications in response to this article are not subject to the attorney-client privilege.

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I Just Got Arrested for DWI. Is My Texas Driver’s License Still Valid?

September 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Yes.  If you have just been arrested and released for a DWI in Texas, then your Texas driver’s license will not be suspended for 40 days from the date of your arrest.

You should be given several documents during a driving while intoxicated arrest — usually two yellow carbon copies.  One is your statutory warning about the consequences of refusing or taking a breath or blood test (DIC-24) and the other is your temporary driving permit (DIC-25).

The DIC-25 states in the fine print, “This permit is valid for 40 days from the date of service shown below.  If you request a hearing, this permit will remain in effect until the administrative law judge makes a final decision in your case.”

English translation — you still have a drivers license.  If you appeal the suspension (you have 15 days to do this), then the DIC-25 is your driving permit until your appeal is ruled on by an administrative law judge.  If you do nothing, the yellow sheet is your driving permit for 40 days.  Either way, you are perfectly okay to drive if you have a Texas license.  At least for now.

Normally if you take the breath test and fail or if you refuse the breath test, the arresting officer confiscates your license on the spot. Again, this doesn’t mean you can’t drive.  You do, however, have to pay attention to the fine print.

If you take a blood test, then normally they don’t take your drivers license because they don’t know if you passed or failed the test.  In those instances, you have to check the mail for a letter from DPS indicating whether your blood result has triggered a possible suspension.  If it has, then you still have time to file your appeal.

If you’re in the situation where you were just arrested for driving under the influence within the past few days, then you’re still in a position to maximize your full options with regards to your driver’s license.  You can appeal the officer’s decision to ask you to take the breath test and you can get an occupational driver’s license in the event your license is ultimately suspended.

Unlike a fine wine, your options don’t get better with age.  So now is the time to get into decision mode.

*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 issue, you should consult an attorney directly.  Communicating to the attorney through this blog does not constitute an attorney client communication and nothing communicated herein is considered privileged.

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