Collin County Pre-Trial Diversion Update (April 18, 2011)

April 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The Collin County Pre-Trial Diversion program (formerly known as deferred prosecution program) is beginning to take shape.  This is the program which allows many people who have never had a run-in with the law a chance to fully clear their record without the risks associated with trial.

Prior to 2011, to be eligible for “deferred prosecution,” someone needed to be between the ages of 17 and 21, be accused of a non-violent offense, never have been in trouble before, and a resident of Collin County to qualify for the program.  The former administration (under District Attorney John R. Roach) would not accept applications but would review incoming cases for those they deemed as qualifying.  Those people would get an unsigned letter on the DA’s letter head directing them to call a particular probation officer.  If you didn’t answer on time or if for some reason you never got a letter — you were out of luck.  Finally, if you did successfully complete the program (and that was a bigger “if” than it should have been), you would have to wait 2 years to apply for an expunction, which the DA’s office could technically oppose if they wanted.

Here’s how it works with the new Greg Willis administration — after the arrest, the filing agency (usually the police department that made the arrest) files their case with the DA’s office.  The DA’s office in turn files misdemeanor cases with the trial court or if the case is a felony with the grand jury.

Once the case has been assigned to a trial court, the defendant’s attorney can request the case be considered for the pre-trial diversion from the prosecutor.  If the trial court prosecutor approves, they send it through several channels within the DA’s Office.  If those get approved as well, the accused is invited to meet with the probation officer to enter the program.

Prosecutors are given general guidelines for the Pre-Trial Diversion.  While the program is still not open to DWI or domestic violence cases, felony offenses are now available for the program.  Prosecutors have been instructed to scrutinize cases where there may be impaired driving that falls short of driving while intoxicated — which may include drug arrests in cars.

The trial-courts have agreed, in principal, to cooperate with the Pre-Trial Diversion program.  There are still likely details with the Courts that must be worked out with how these cases are accounted for or monitored.

Finally, the best benefit of all to the Pre-Trial Diversion program is that for the first time, the DA’s office promises the accused in writing that if they successfully complete the program, they agree to dismiss the case and never refile it.  This bar to prosecution makes expunging the arrest more clear and immediate.

Again, the diversion program is still a work in progress. If there are more updates with the program, you can read about it here.

*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 particular situation, you should contact an attorney directly.


Physician – Patient Privilege in Criminal Cases

September 13, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Texas Rule of Evidence 509 governs the physician- patient privilege.  As with all privileges, it acts to protect communications that are confidential between a physician and a patient “relative or in connection with any professional services rendered by a physician to the patient.”

Tex.R.Evid. 509(b), however, practically negates the physician- patient relationship in criminal cases.  That section bluntly says, “There is no physician-patient privilege in criminal proceedings.”

The only small exception under 509(b) is that communications to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for drug or alcohol abuse is not admissible in a criminal proceeding.  This is obviously to encourage people who need help for substance abuse to voluntarily get help without recourse.

Police and/or prosecuting agencies can and do regularly subpoena medical records in criminal cases.  Examples are blood samples taken during medical treatment after a car crash where alcohol or substance abuse is suspected.  Other examples include statements made by pharmacy personnel in the reporting or allegation of prescription fraud.

Federal law which protects patients privacy under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has a recognized exception in Texas for law enforcement purposes when they are issued a grand jury subpoena.  This means that you can’t rely on HIPAA laws to protect your privacy with doctors depending on how the police or prosecuting agency try to attain medical records.

The bottom line — communications between patient and doctor are not legally protected in criminal proceedings. The privileges largely apply in civil cases, but not criminal.

*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 for any specific situation you should consult an attorney directly.