TxDOT Signs Bend Truth for Noble Cause

August 27, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

On a recent drive to Austin and back, I couldn’t help but notice about 10 or 15 Texas Department of Transportation electronic signs which flashed two sequential screens.  The first was “1785 Deaths This Year on Texas Roads” and the second was a reminder not to drink and drive.

Wow, I thought… I didn’t realize drunk driver’s caused about 250 deaths per month in Texas alone!  Then I started thinking this figure sounded a bit too high.  Then my lawyer brain started to kick in and I realized the TxDOT signs were sort of making a play on words… The signs didn’t actually SAY all 1785 were caused by DWI — they had their fingers crossed!

The Obvious

No one wants drunk drivers on our roads.  Losing a loved one on the highway is a terrible tragedy no one should experience regardless of whether it’s inattentive driving, road rage, texting or drunk driving.  Hopefully the TxDOT officials decision to publish the number of traffic related deaths will turn heads and in doing so make our highways a safer place to drive.  You can read some of the PR they got here and here.

The Rub

The signs leave the clear impression the 1785 tragic losses on the highway are ALL due to Driving While Intoxicated.  When you read the quote from TxDOT spokesman Mark Petit, he says “We think that pointing out the number of deaths that have occurred so far this year will make somebody think twice maybe about whether they should pick up that cell phone and text somebody, or whether they should buckle that seatbelt.”

But the signs don’t say, “Buckle Up” and they don’t say, “Don’t Text and Drive.”  Each sign I saw had the same sequence of traffic deaths followed by the warnings against drinking and driving.

Here’s Why It’s A Problem

It’s a problem because it leaves a false impression, over-exaggerates, and stokes the flames against a group of people that it’s already somewhat popular to pick on — DWI suspects.  TxDOT concedes traffic fatalities have declined 21% in roughly the past decade and Mr. Petit’s warning in the above quote is also clearly against distracted driving.

Think of how angry you would be if your husband, wife, son or daughter were on trial for Driving While Intoxicated and during the jury selection process, you hear extremely angry jurors who want to presume a suspect guilty and give them far harsher punishment — because they’re lead to believe DWI related deaths are approximately 300% worse than they actually are (in 2011, TxDOT reports 3,015 total highway deaths and 1,039 “involved” alcohol).

If there is harm in the Texas Department of Transportation also warning drivers to put down hand-held devices and to wear seat belts in conjunction with the traffic death statistics — I have a hard time seeing it.  Everyone wants safer roads.

*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 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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Posted by Jeremy Rosenthal, Esq.

Governor Perry Vetoes Texting While Driving Ban

June 19, 2011

By Dallas and Collin Count Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Texas legislature recently passed House Bill 242 which made texting while driving illegal in Texas.  It would have made violations a Class C misdemeanor, which is the lowest offense level – equivalent to speeding.

On June 17, 2011, Governor Perry vetoed the bill saying the bill was “a government effort to micromanage the behavior of adults.”  He did state texting while driving was “reckless and irresponsible.”

Study after study has shown texting while driving to be as or more dangerous than drunk driving.

*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 situation you should contact an attorney directly.

 

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Posted by Jeremy Rosenthal, Esq.

Getting a Deep Lung Device Off Your Car

April 28, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

The most common complaint I get about the deep lung device (also known as an ignition interlock device) is not the hassle, not the cost, but is that is a very cruel and degrading mark of shame.

Whether it’s increased legislative requirements or increased pressure from mothers against drunk driving, these devices are becoming more and more popular with judges.

If you’re reading this, chances are you want to know how to get the thing OFF your car with the Judge’ permission.

The first question is whether the Judge has discretion to order the device removed.  Discretion is just a legal term meaning that the law allows the Judge to decide one way or the other.  For example, in a situation where it is a second DWI arrest, the accused must legally have the deep lung device installed on the car pursuant to Tex.Code.Crim.P. 17.441.  But, under Texas.Code.Crim.P. 42.12 Section 13(i), the Judge may allow a probationer to have the interlock device removed after 50% of the probation is complete.

If the judge has the legal discretion to remove the device, the next step is to convince him or her that this is appropriate in your case.  Here’s the key in Texas — private companies monitor the ignition interlock devices and they keep a detailed log of whether there have been any violations or if the car is under-utilized which indicates the driver may be driving another vehicle and avoiding blowing into the apparatus.  Virtually any judge that I know would ask to see the records from the log.  This means that to have a good chance of getting the deep lung device off your car — you have to have as clean a record as possible.  Also keep in mind that probation officers and the personnel that monitor these devices are highly cynical.  Some will take any failure – regardless of the cause – as proof that the driver has been drinking.

Even with a clean record, it’s no guarantee that your judge will allow the apparatus to be removed, but you’re not giving yourself a chance to get rid of the humiliating device with a dicey record.

You should consult with your attorney as to when it is appropriate to ask the Judge to have a deep lung device removed from a car.

*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 contact an attorney directly.

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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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