Drug Based DWI Cases

April 13, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

What happens when someone gets arrested for Driving While Intoxicated but there is little or no alcohol detected?

The Legal Basis for DWI Arrests Without Alcohol Involved

Chapter 49 of the Texas Penal Code defines driving while Intoxicated as operating a motor vehicle in a public place while intoxicated.  Intoxication is further defined by Tex.Pen.C. 49.01.  Under that chapter “Intoxicated” means:

(A) 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 (B) having an alcohol concentration of 0.08 or more.

So as you can see Texas recognizes a laundry list of things which could cause intoxication capped by the catch-all phrase “any other substance into the body.”  Taken literally this could mean sugar, coffee, or even water if it caused you to “not have the normal use of your mental or physical faculties.”

The Major Difference Between Drugs and Alcohol For DWI Arrests

There is a “per-se” definition of intoxication for alcohol but none for “street drugs” such as marijuana, cocaine, or even heroine… nor is there a per-se definition of intoxication for prescription medications such as hydrocodone, oxycontin, or xanax.

This is to say the scientific community agrees no one is safe to drive at 0.08 or higher BAC.  In other words, at 0.08, everyone is intoxicated.  There is no similar number or level for drugs.

Even the State’s most loyal toxicologists cannot say for certain that at any given amount of marijuana, for example, caused a specific person to be intoxicated on a specific occasion.  They may testify such a drug “affected” the driver but any lawyer’s ears should ring when they hear those words — because those probably aren’t legally sufficient to sustain a conviction for driving while intoxicated.

The Real Battle

Drug based DWI cases can be real dog-fights in the courtroom.  This is because it is at the intersection of science and bias.

Pharmacologists, toxicologists and people of science will tell you up and down just how difficult (if not impossible) it can be to tell whether a person has lost the normal use or about what caused a person not to have the normal use of mental or physical faculties based on drugs… but this doesn’t stop police officers, prosecutors, or jurors from from making knee-jerk reactions based on some of the drugs involved or based on the behavior they observe.

Prosecutors know many juries will convict a person for almost anything when they hear a person used marijuana or xanax.  This doesn’t make it legal.

In many cases police who may have had some training in the detection of drug impairment will attempt to testify as if they are a qualified physician able to diagnose highly complex situations of drug ingestion.  Also many officers claim to learn about the effects of drugs on the job through their “training and experience.”  This can often be a concocted phrase that makes them experts on everything from hydrocodone to tennis racquets to waffle irons.  They mean well but I’m pretty sure they’d get a 2nd opinion if a fellow officer diagnosed one of their loved ones with a life-altering disease (which a DWI diagnosis can be).

How Courts Struggle With Drug Related DWI Arrests

Courts are the ‘gatekeepers’ of evidence which juries receive to come to their verdicts.  The law school example is the Judge should exclude testimony from a witness who claims the moon is made of cheese.  In drug based DWI arrests, then, the issue is whether a judge should even allow a police officer with several hours of training (if any) on pharmacology or toxicology to speak as if they have post-graduate degree on the matter.

In Layton v. State, 280 S.W.3d 235 (Tex.Crim.App. 2009), the Court of Criminal Appeals ruled use of medications was not admissible in a case where alcohol was the main intoxicant unless the State could show the dosage of the medication taken, the time of ingestion and the half-life of the drug.  But, as always, Courts are constantly re-analyzing the edges of the issues and often reaching contrary conclusions.

What You Need to Do if You’re Charged with a Drug Based DWI

Don’t assume you’ll lose or that things are hopeless.  These cases can be real battles but they are highly complex and many are winnable.  Call an experienced lawyer.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contact through this forum is not privileged nor confidential.

 


Will I Get a Deep Lung Device Ordered on My Car – And When Can I get it Off?

April 11, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

One of the biggest changes to DWI practice I’ve seen over the past decade is the increasing frequency an Interlock Ignition Device is ordered on someone’s car.  It can also be a headache getting it off the car when the time is over  (it is also known as “Deep Lung Device” or “DLD” for short).  If you’re not familiar — it is the device you must blow into to start your car when battling a DWI arrest or probation.

One of my biggest challenges as an advocate for my clients is to show the prosecutors and judges I work with the DLD is an affront to a person’s dignity more than anything.  Should the punishment for DWI arrests be public humiliation of my client every time they start their car in front of their loved ones, kids or neighbors?  I’d imagine when someone blows in to the device — it must feel like every eyeball on the planet is on them.  The battle over the deep lung devices is truly at the intersection of individual freedom and public safety.  It says a lot about us where we draw the line.

When a DLD is Required – And Why They’re All the Rage

Several factors are converging to make the devices popular.  First is legislature who score automatic good-guy points every time they “get tough on DWI.”  They require the DLD in many instances including (1) when you’re on bond for DWI 2nd or higher; (2) when you are convicted of DWI over 0.15 or DWI 2nd for at least 1/2 of the probationary period; or (3) when you apply for an occupational driver’s license (“ODL”) due to a DWI related suspension.

Another factor is Judges tighten the grips even more.  Judges have discretion in setting terms and conditions of bond to put an interlock device on a car.  In Collin County, most will Order the DLD in certain circumstances regardless if it’s a 1st arrest.  Those include where there was a car accident, where there was a blood alcohol concentration over 0.15, or where the driver was a minor.

The final factor I am told time and again by many who work at the Courthouse (such as probation officers, prosecutors, and even court staff) is they say they will get fired if they allow someone to remove the device and that person causes a DWI accident with victim fatalities.  Thankfully I haven’t seen this happen and hopefully I never will.  I still do my best to assure whomever I deal with that even if there were a DWI accident, I’ve also not seen someone fired (or lose an election) for a specific decision they made related to one particular case.  I also point out to them they are allowing unreasonable fear to effect their better judgment — and that if no one in the courthouse has the courage to order (or suggest) these things be removed we should just have a policy to have the DLDs on cars 100% of the time in all DWI cases.

Getting the DLD Off Your Car

For all practical purposes, you need an Order getting it off your car.

Device providers often see themselves as surrogate probation officers or Court Bailiffs.  They won’t take the interlock ignition devices off your car without a Court Order.  I’ve never seen any law or rule which allows them to do this and I suspect they make money by requiring you to take the 2 or 3 weeks to get an Order to remove the device from your car. I’m sure it’s not bad for the bottom line in aggregate.  Anyways, the companies are getting more savvy because I’ve recently seen clauses in their contracts which require Court Orders for removal.  So there it is.

When Are You Eligible for DLD Removal?

If you have a DLD on your car as a condition of bond then you are eligible once the case is over… though often it stays on for other reasons (see below).  If you are acquitted, then it comes off immediately (with a Court Order, of course).

If you have a DLD as a term of probation then you can ask the Judge to remove it at any time unless it is a DWI over 0.15 or a DWI 2nd or higher… in which case you must have it for at least 50% of probation.  Then you can ask for its removal.

If you have the deep lung device as a term of an occupational driver’s license then it remains until the ODL expires.  New legislative changes actually loosen restrictions on where you can drive with an ODL so long as you have a DLD.

How Do I Get a DLD Removed?

Give us a call.

*Jeremy Rosenthal is an attorney licensed in Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For legal advice in any situation you should contact an attorney directly.  Communications through this forum are not privileged or confidential.

 

 

 


How Long Does a DWI Stay on My Record?

March 11, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A Texas DWI conviction is on your record forever.

You can be convicted by either pleading guilty or being found guilty by a judge or jury after a trial.

What is surprising to me is when I ask random people how long driving while intoxicated stays on a criminal record  the wrong assumptions they make.  People think you get a fresh start after 7 years or 10 years.  They think it’s temporary.

Not only is it not temporary, but it can always be used to enhance subsequent DWI’s regardless of how long they were in the past.  A conviction in the 1960’s plus a new DWI arrest would be a DWI 2nd and so on.

Never take pleading guilty to anything lightly.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is Board Certified by the Texas Board of Legal Specialization in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice contact an attorney directly.  Communications through this blog are not privileged.


“Not Having the Normal Use of Mental or Physical Faculties” in DWI Trials

February 17, 2016

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Chapter 49 of the Penal Code defines intoxication for the purposes of a Driving While Intoxicated (DWI) case three different ways.  A person is intoxicated if “they do not have the normal use of their mental faculties; do not have the normal use of their mental faculties; or have a blood alcohol concentration of 0.08 or greater…”

Not Having the Normal Use

Herein lies a classic struggle between prosecutor and defense attorney.  The term “normal use” is usually defined by the judge only to be a “normal non intoxicated person.”  That’s all the clarification a jury gets.  It’s as clear as mud.

What the prosecution will often attempt to do — as early as jury selection — is manipulate the definition of “normal” to make it as slight a burden as possible.  The less drunk they have to prove…

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Preparing for Punishment

January 9, 2016

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’ll talk about a topic many of my colleagues avoid with clients — at least initially.  Punishment or mitigation can be a scary topic but the importance goes without saying.

I’d like to think those who know me know I’m not a push-over on trying to get an acquittal.  Acquittal is always the first option.  But in any case you have to have a back-up plan.

Punishment or mitigation (reduction of the severity of punishment) occur on two general occasions in cases I handle.  These are in negotiations with the prosecutor and, if necessary, in a punishment phase of a trial after someone has been found guilty.

Misdemeanor Punishment/ Mitigation

With most misdemeanors I’m primarily concerned with the collateral consequences of the criminal action.  I’m more worried about the job or promotion you’ll be facing in 10 years than I am with whether you will be doing 20 or 30 hours of community service.

Misdemeanors do carry potential jail sentences (class b misdemeanors are up to 180 days in the county jail and class a’s are up to one year).  In Collin County, though, most people facing punishment on misdemeanors are facing probation sentences rather than jail barring criminal history — or someone’s personal preference to serve jail instead of be on probation.

Being of good moral character with little or no criminal history does matter and it’s my job to make sure the prosecutor and/or judge knows this about you.  My primary use of it, though, is focused on making sure we can get your arrest either non-disclosed or expunged.

Felony Punishment/ Mitigation

I’m convinced the Defense side has the upper hand in felony punishment though often the underlying facts of the charge might be difficult.

This is because my client is a living, breathing three-dimensional human being who is worthy of being understood and being cared about.  The lawyer for the state only has a flat, 11 x 8 inch file.

Obviously someone facing felony punishment has been found guilty of doing something hurtful, thoughtless or distasteful.  But your lawyer cannot allow the punishment phase of a felony trial to be solely about the facts of the charge or other previous bad acts by the accused.

No one would want their life to be judged based on the worst decision they’ve ever made.  It’s not fair.

I believe in telling the jury or judge stories which show character through friends, family and other acquaintances who might have little reason to attest to your goodness but do so because they’ve seen you at your best.  You can really get the sense of how someone truly is when you hear two, three, or four people come and tell you the same positive attributes.

Everyone is entitled to be judged on their whole life.  Not just the sliver of their life in the prosecutor’s file.

The prosecutor is left with very little to argue when you show a powerful punishment case to a jury other than “look at what you did!”  As bad as that can be in some cases – the punishment will be decided on all the facts which is as it should be.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article should be viewed as legal advice and you should contact an attorney directly for any legal issue.

 


Probation Sanctions — Facts Versus Fiction

November 29, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Frequently, a probation officer (“PO”) in Collin County will present a probationer with proposed “sanctions” for alleged probation violations. Often the officer will request the probationer make up their mind on the spot – which prevents the probationer from truly making an informed decision.

The proposed sanction could include jail, taking new classes, and even extending probation. If the person turns down the sanction, then the probation officer threatens a motion to revoke probation or motion to adjudicate deferred adjudication.

These situations are like snow-flakes. No two are alike. Thus, you should always talk to a lawyer about your choices, and this blog (awesome as it may be) is really no substitute for case specific legal advice.

The best I can do is separate fact from fiction based on what I hear about the tactics some PO’s might use to get probationer to sign the sanctions, and what I know the law to be about revocations.  I use the terms probation revocations and adjudication of deferred interchangibly:

Facts:

  • A probation officer can seek to have your probation revoked if you violate any term and condition of probation. They need the District Attorney’s Office to sign off — but this is just a formality.
  • A probation revocation will trigger a warrant. You will be re-arrested. You are generally entitled to bond on misdemeanors but not always on felonies.  If there is no pre-set bond, then you might have to wait in jail while one is set. This could take several days or several weeks.
  • The vast majority of revocation proceedings result in plea bargains between prosecutors and your defense lawyer.
  • If you have a contested hearing, the state has the burden to prove by a preponderance of the evidence that you did violate probation at a hearing before the judge. Formal rules of evidence apply.
  • Most revocations have multiple allegations of violations, and if you lose on any one of them your probation could be revoked or deferred adjudicated.
  • If your probation is revoked then you can be punished as much as the underlying sentence will allow. If you were on deferred, then you’re subject to the maximum sentence range.

Fiction:

  • The Judge is angry with you:
    • Rarely does the judge know or care about your case if you’re just having problems with your probation officer. Collin County Judges have hundreds if not thousands of cases at one time — so your case is not as special as you think. Some judges are very “hands-on” with probationers but most would consider an every-day dispute between a probationer and a PO as a waste of their time. This obviously changes if you face revocation proceedings.
  • You Will Definitely be Revoked/ Adjudicated
    • POs often bluff.  They do not seek to revoke probation on every instance where they offer sanctions.
  • You Will Have to Explain Your Refusal of the Sanctions to the Judge
    • If you say no to the proposed sanction you are not necessarily going to have a hearing with the Judge.  The paperwork and the PO might say if you say no to the sanction you are requesting a hearing with the judge — but the reality is the PO is the one requesting it and they rarely follow through.  This is more often than not used as a threat to bully someone to accept sanctions.
  • You Will Get the Max (or Lengthy) Jail Sentence if You Say No
    • You won’t get punished for saying no to your PO.  This is normally an idol and unsubstantiated threat.  Think about it… if your PO really thought you should get a maximum sentence — then why are the offering not only to keep you on probation but not even revoke you in the first place?
  • The PO Will Make Sure You Get a Stiff Penalty if you Say No
    • Your probation officer has very little to do with process after the motion to revoke is filed.  They don’t go to your court dates and they don’t normally have a close relationship with the prosecutor.  The PO might testify if the case is ultimately contested but this is rare.  The PO typically writes a recommendation but this recommendation is not binding on anyone.

Can I Get Out of Sanctions if I already Signed Them?

Yes, it is possible. You need a lawyer and you need to file a request with the Judge to abate (pause) or undo the sanction.  The sanction can be analogized to a contract.  Most contracts can’t be executed under duress or stress.  Where a sanction was signed under threats of jail or worse — an argument can be made the consent was invalid.

The Bottom Line About Sanctions

Sometimes they make sense and you should seriously consider accepting them.  Don’t do so without a lawyer, though.  We can tell you what your alternative looks like and this will allow you to make an informed decision and you will know whether you have been offered a fair deal or not by your PO.  Your PO is likely an honest, hard working person but they do not know the court system, the laws, and the likely outcomes nearly as well as your lawyer will.

 

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice you should consult an attorney directly.


Shock Probation — Converting a Prison Sentence to Probation

October 15, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

“Shock Probation” allows a trial judge to convert a prison sentence into probation.  This can be after a plea bargain, a bench trial, or a jury trial where the Defendant is sentenced to prison.

Texas Code of Criminal Procedure Section 42.12(6)(a) allows the trial court to retain jurisdiction “for 180 days from the date the execution of the sentence actually begins” and the judge can place the defendant on probation if the defendant is otherwise eligible.  These do not apply to State Jail Felonies, however, other probation programs apply to those charges.

In other words, the defendant must still (1) be sentenced to less than 10 years of prison and (2) not have been convicted of a felony in this state or any other State.  The Judge cannot grant shock probation where the Judge couldn’t otherwise — meaning “3(g) offenses” such as murder, aggravated robbery, aggravated assault, aggravated sexual assault of a child, indecency with a child, or injury to a child to name just a few.

So here is how it works… after someone is sentenced (for example after a jury trial), the lawyer files a motion for shock probation under 42.12(6)(a).  The judge can deny the motion without a hearing but cannot grant the motion without a hearing.  The Judge must grant the request within 180 days of the date the execution of the sentence actually beings or it would be over-ruled as a matter of law.

Shock probation and an appeal are not mutually exclusive and both can be done.

A motion for shock probation is a great “second bite at the apple” and should be considered where a trial or plea bargain went wrong.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is board certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


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