What is the Difference Between Pleading Guilty and No Contest in Texas?

February 28, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Under Texas law — pleading “no contest” (or sometimes called “nolo contendere”) feels better than pleading guilty and that is about it.

Many people think that if they plead “no contest” that they’re not being convicted or being placed on deferred and that nothing will go on their criminal record.  This is not true and the wording of the plea is nothing more than a legal mechanism which alleviates the state from their burden of proof beyond all reasonable doubt.  If the judge accepts a plea of guilty, or no contest — they are legally empowered to find you guilty (or place you on deferred) with no additional evidence.

The lone narrow difference is that if you plead “no contest” to an offense in Texas, and if there is a civil case where the criminal case is of significance, a “no contest” plea might not be admissible in that proceeding.

Due to the fact civil cases have even lower burdens of proof than criminal cases and usually settle before trial anyway, “no contest” pleas are somewhat irrelevant to a lawyer’s analysis of your criminal case.

All-in-all the biggest issue with “no contest” pleas is that it can leave a false sense as to the outcome of the case.  The only way to erase a criminal record in Texas is through an expunction.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For legal advice you should consult an attorney.

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Bonding Someone Out on a Felony Charge

February 28, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This is actually an easy process to understand, but unfortunately it moves at the speed of government.

First you need to learn exactly what they are being charged with by the police.

Once you find out what they are charged with, your next step is to find out whether they have been before a magistrate judge to set a bond.  A bond is an amount of money paid or pledged to insure the accused appears for court.

Section 14.06 of the Texas Code of Criminal Procedure gives the police 48 hours to take someone arrested before a magistrate for the purposes of setting bond in felony cases.  If they don’t, then it triggers an automatic $10,000 bond under Section 17.033.  Rarely will anyone wait that long.  You can expect someone to be taken before the magistrate within the first 24-hours of arrest — hopefully sooner.

You have several ways to satisfy the bond.  If you pay the bond in cash then the bond is refundable once the case is over and the defendant complies with all the terms and conditions of bond.  If you cannot pay the bond, you can either contact an attorney-surety approved by the local county or you can contact a bail bondsman.  Both attorney-sureties and bondsman pledge to pay the county money in the event of non-appearance of the defendant.

Make sure any bondsman or attorney-sureties are licensed, bonded with the county, and reputable.

If the bond is too high, you can have an attorney petition a Court to have it lowered.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article should be considered legal advice.  For legal advice, please consult an attorney.

 


How the Police Take Your Blood Without Your Consent

February 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.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 F. Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice, please consult an attorney.

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Should You Answer Questions After You are Read Miranda Rights?

February 25, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.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 F. Rosenthal is an attorney licensed to practice law in the State of Texas.  This article is not intended to be legal advice.  For legal advice, you should consult an attorney.

 


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

February 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(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 F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice, you should consult an attorney.

 


Which DWI Charges are Felonies and Which are Misdemeanors?

February 23, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

All the “tough-guy” talk from law enforcement about DWIs in Dallas and Collin Counties in Texas has created a lot of confusion.

Most DWI Arrests Are Misdemeanors

Most are relieved to hear a first arrest is a Class B misdemeanor and a second is a Class A.  But when do DWI’s become felonies?

Several ways.  What makes the identical act of driving a motor vehicle in a public place while intoxicated (which is normally a misdemeanor) a felony is generally additional or surrounding factors.

It is important to note that every jail term I describe below may be probated in certain circumstances.

Driving While Intoxicated With a Minor

DWI with a minor 15 years-old or younger is a State Jail Felony punishable between 180 days and 2 years jail and/or a fine not to exceed $10,000.

Driving While Intoxicated (3rd Charge or More)

If you’ve been convicted of DWI two times before, then the third DWI is a 3rd degree felony carrying a possible prison sentence between 2 and 10 years and/or a fine not to exceed $10,000.  Additional convictions pile-up like bricks with the enhancements getting progressively harsher.  For details on specific enhancements for a 4th DWI or greater, consult an attorney.

Intoxication Assault

Intoxication assault is typically a non-fatal accident where someone is seriously hurt or disfigured and is a 3rd degree felony.  The prosecution must prove not only that the defendant caused the accident, but the accident was caused by the intoxication — and that a person suffered “serious bodily injury.”

Intoxication Manslaughter

Intoxication manslaughter is the same as intoxication assault, except that the accident causes someone to die.  It is a second degree felony carrying a sentence between 2 and 20 years prison and a fine not to exceed $10,000.

The Texas Legislature has allowed for the “stacking” of punishments for intoxication assault and/or manslaughter.  What this means is that if there is more than one victim (hence multiple counts), those punishments can be added together whereas most felony punishments run concurrently (or together).

Enhancements for felony punishment can be complex in Texas, so it’s essential to discuss the specifics with an attorney.

*Jeremy F. Rosenthal is an attorney licensed to practice in Texas. Nothing in this article is intended to be legal advice.  For legal advice, please consult an attorney.


Punishment for a 2nd DWI in Texas

February 22, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

www.thecollincountylawyer.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 F. Rosenthal is licensed to practice law in the State of Texas.  This article is not intended to be legal advice.  For legal advice you should consult an attorney.

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