Texting While Driving — 23 times More Likely to Cause an Accident

March 31, 2010

A recent Virginia Tech Transportation Institute (VTTI) study shows drivers who are texting are 23 times more likely to be involved in a crash than those who aren’t texting.  The study also shows drivers increase risk of a crash by reading (3.4%), applying makeup (3.1%), dialing handheld device (2.8%), or talking on a handheld device (1.3%).  The study doesn’t directly compare texting while driving to driving while intoxicated.

VTTI’s information release can be found here.

Texting while driving is illegal in 18 states and the District of Columbia.  In Texas, texting is illegal while driving for teenagers.  Also handheld devices cannot be used in school zones by anyone.  Some Texas cities are looking at passing local ordinances that could try broaden that law.  Those offenses are class c misdemeanors punishable by a $500 fine.

Currently Texas Transportation Code 545.401 covers reckless driving defined as driving with willful and wanton disregard for public safety.  That offense could conceivably cover texting while driving and is a “hybrid” offense punishable by a $200 fine but up to 30 days jail.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed to practice law in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about your specific situation you should consult an attorney.

www.thecollincountylawyer.com


Probation FAQ’s

March 29, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Probation (technically called community supervision), is where the Judge suspends all or part of the sentence in a case for a certain period of time.  In the probationary period, the person typically completes community service and other requirements such as classes or drug testing.

A person on probation in Texas must complete and abide by “terms and conditions” of probation.  Typically a person cannot commit an offense against the State of Texas or any other state as a minimum.  Other requirements range from requiring the defendant to report changes in address, changes in employment, and new arrests, if any.

Difference between Deferred and Probation

Deferred adjudication is where you have not been convicted.  Probation is where you have been convicted for the offense.  While on deferred, you must still complete community supervision as if you were on regular probation for most offenses.  The terms can be used interchangeably, but they’re not really identical.

Probation Eligibility

If you’ve never been convicted of a felony in Texas or any other state you are usually eligible for probation. Convicted felons are tricky and it is best to consult a lawyer about your specific situation.  Prosecutors have differing policies against offering probation for certain offenses such as drug trafficking, robbery, and crimes against children.

Can I have Probation Records Expunged?

No.  Expunctions for cases above class C misdemeanors require acquittal or another legal bar to prosecution.  You may be eligible for a petition for non-disclosure, however.

Is there Probation for Federal Offenses?

Yes, but it is likely that if you get probation in Federal Court that you will still serve jail at some point.  There is no parole in Federal prison so almost the only way you can be released from prison without serving all of it is to serve part of it on probation.

Can I be Released from Probation Early?

Yes, you are generally eligible for early release in Texas state courts for probation 1/3 of the way through probation and if  you’ve completed every requirement.  There is no early release for DWI offenses, certain drug offenses, and sex crimes.

Can I do Rehab Instead of Probation for Drug Crimes?

It depends on the case and the willingness of the prosecuting attorney to all an arrangement like this.  More often than not, a prosecutor or Judge may include the rehab as part of probation but not necessarily replacing probation altogether.  This is the type of deal an experienced attorney may help you reach with the prosecutor.

What if I don’t Like my Probation Officer?

Do your best to get along with them even if that means swallowing your pride.  They hold the keys to your jail cell.  In their defense, probation officers have a very difficult job.  The better you get along with them, the more they appreciate you… but they can be extremely damaging to your case if they think you’re a problem.  If they become verbally abusive or play games you may consider involving an attorney though getting a different probation officer can be difficult.

Probation Violations

If you violate probation, your probation officer can cause a probation revocation proceeding (or an adjudication proceeding if you are on deferred) to occur.  You’d be re-arrested and the only issue before the Court is whether you violated your deferred or probation.  If the state proves even one violation more than a preponderance of the evidence, the judge can convict you of the deferred, or revoke your probation.  If this is done, you may be required to serve all or part of the underlying jail sentence.  Often on revocations, however, the judge may extend probation or take some lesser action.

*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 specific legal advice for any situation, you should consult an attorney.


A Felony Conviction: Legal Cancer

March 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

There is no such thing as a small felony.

A felony charge or conviction tells everyone not to hire you, rent to you, or befriend you.

The textbook consequences of felony convictions and deferred adjudications are the punishment ranges for such offenses which include fine and jail time.  But felonies act as trap doors due to the mountains of the collateral civil statutes which gut your rights.

Specific examples of collateral consequences of felonies are their impact on professional licensing.  The Texas State Board of Medical Examiners must suspend licenses for felony convictions.  The State Bar of Texas disbars attorneys convicted of felonies, and the Texas Department of Insurance may not issue a certificate of authority to act as an insurer if a corporate officer, or member of the board of directors has been convicted of a felony involving moral turpitude or breach of fiduciary duty.  There are many Texas occupational statutes which affect your ability to make a living as a felon for large and small jobs alike.

Other examples include limitations on an individuals ability to adopt or become foster parents especially in cases involving child abuse or neglect or spousal abuse.  In a divorce situation, a parent who is a felon may be denied custody.

Yet other examples are a felons ability to own firearms (which is prohibited by federal law).  Felons cannot sit on juries.  Convicted felons cannot act as executors of estates in probate proceedings.  Felons can’t vote.  Many countries won’t allow felons to emigrate or even visit.  The list is endless.  Not only that, but the state of Texas and the federal government in some situations reserve the rights to blur the lines between a felony conviction and deferred adjudication (meaning some laws say words to the effect, “for the purposes of this statute, deferred adjudication shall be treated as a final conviction.”)

The bottom line is this — felonies are bad news.  The collateral damage of felonies are well above and beyond just the minimum and maximum jail or prison sentence ranges.  It is crucial that you address any and all specific concerns about felony charges with your attorney.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article is intended to be legal advice nor does it create an attorney client relationship.  For specific legal advice, you should consult an attorney.


Occupational Driver’s Licenses for Texas DWIs

March 25, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

What is an Occupational Driver’s License?

In Texas, an occupational license (also known as an ODL) is a temporary permit allowing people to drive while their license has been suspended due to a breath test refusal or breath test failure in a DWI situation.

How Can I Get an Occupational Driver’s License?

An occupational license is attained through a civil petition (basically a civil lawsuit) which a judge must approve.  The Judge can allow someone to drive for 4 hours a day (but can extend that to 12 hours a day upon showing of “essential need.”)  The court order, by law, must contain the times and routes of travel.  Judges can also order other provisions such as interlock devices be placed on cars during the occupational period for DWI cases.

For those with irregular travel due to work (for things such as sales routes), Judges can order log-books be kept in the vehicle.  Also, for the issuance of an occupational license, the State requires you attain what is known as SR-22 insurance.

What is an “Essential Need?”

Tex.Trans.C. 521.241 defines “essential need” as:

“(A)  in the performance of an occupation or trade or for transportation to and from the place at which the person practices the person’s occupation or trade;  (B)  for transportation to and from an educational facility in which the person is enrolled; or  (C)  in the performance of essential household duties.”

Chapter 522 of the Texas Transportation Code covers commercial vehicles.  No occupational licenses can be granted for commercial vehicles.  Tex.Transp.C. 521.242(f).

Occupational questions and qualifications can be very complex and consulting an attorney can save you much time and effort.

Quick References for More Information

The statutes governing driver’s license suspenses and occupational licenses due to intoxication and even marijuana offenses read like complicated flow charts and matrices… but here are some generalities and reference points:

Occupational licenses are governed by Chapter 521 of the Texas Transportation Code, Subchapter L.  Breath test suspensions are governed by Chapters 524 and 724 of the Texas Transportation Code.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article is intended to be legal advice.  For specific legal advice in your situation, you should consult an attorney.

www.thecollincountylawyer.com


What is the Punishment for a First DWI Offense in Texas?

March 23, 2010

All the hype and rhetoric over DWI enforcement in Texas causes people who get arrested to have the expectation of a very harsh punishment — like a felony conviction, having their arm lopped off, or a bright orange DD tattooed on their forehead.

DWI punishment isn’t a walk in the park, but it’s not quite that bad.

A first offense is a class b misdemeanor — which is in the middle of the misdemeanor range.  It’s punishable by a minimum confinement of 72 hours jail and/or a $2,000 fine.  While no lawyer can guarantee you any particular result, statistically the vast majority of convictions on first DWI arrests result in probation.  This means that any jail time assessed may be put off while you complete community service and various other tasks such as a victim impact panel.  There is no deferred adjudication for DWI cases in Texas on any level.

Also if you’re convicted of DWI in Texas for a first offense — you will be assessed a surcharge for three years to retain your driver’s license of $1,000.00.  If you have a breath test result of above a 0.15, then the surcharge is bumped to $1,500 per year.

What I’ve been describing so far are the criminal aspects of a DWI.  The driver’s license suspension for a breath test refusal is a separate, civil matter, but is usually handled in conjunction with your DWI defense.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy 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 directly.


The Difference Between DUI and DWI in Texas

March 22, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Every state has laws preventing drunk driving.  Some call their laws DWI (driving while intoxicated) and some call it DUI (driving under the influence).  Texas actually has both, but there is a big difference between the two.

DUI – Minors

Only a minor can commit a DUI in Texas.  A DUI is where a person under 21-years of age has consumed any detectible amount of alcohol and is operating a motor vehicle.  A DWI can be committed by anyone (including minors) who do not have the normal use of their mental or physical faculties due to the introduction of drugs, dangerous drugs, or other substances into the body and are operating a motor vehicle.

A DUI is a Class c misdemeanor meaning it is the lowest level offense and it’s typically handed by a justice of the peace or at the municipal level.  The maximum fine is $500 and there is a big push in those cases towards rehabilitation, community service, and alcohol eduction.  The burden is clearly lower for those cases as the state only needs to show the driver consumed, “a detectible amount of alcohol.”  Both offenses carry possible drivers license suspensions.

DWI – Both Adults and Minors

A DWI is a class b misdemeanor punishable between 72 hours and 180 days jail and/or a fine not to exceed $2,000.  Generally speaking, a DWI is what people are referring to in Texas when they talk about drunk driving laws.

Jeremy F. Rosenthal

(972) 562-7549

*Jeremy 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.

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Police Interviews — Questions and Answers

March 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Police officers investigate crimes and build criminal cases.  Police use the legal elements of a crime as a check list to determine whether they can make an arrest or not.  Police officers are not judges.  It is not their job to determine who is right and who is wrong and shake the hand of the winner.

Always consult a lawyer if police want to question you.

Miranda rights will typically not apply to voluntary visits to the police station.  While only the police really know the true reason they ask a particular person to come in, it may be because they lack only a technical check-list item to complete their case.

The police may be looking for a minor detail which the suspect assumes is common knowledge, or the police may not have a clue and the suspect confession can be their early Christmas present.  Prison is full of people that should have used their right to remain silent!

“But I’ve Got Nothing to Hide”

Police reports often read like “Soviet History,” meaning you tell the police, “I went to the house for the party for a few minutes and didn’t recognize anyone, so I left.”  The police report will read, “suspect admitted entering the house.”

Got the idea?

If an officer has his mind made up before you even begin the interview, probably nothing you do or say will change his mind.  I’m not saying that people can’t persuade police they’ve done nothing wrong and avoid a huge criminal headache… I’m just saying that is a big gamble.

I Don’t Want to Make the Police Mad

Often times, the only conceivable way they can solve a crime is through your confession or admission.  Police are used to people “lawyering up.”  Getting a lawyer may make the police upset — but they’ll get over it.  Do the officer’s feelings really matter when your future is at stake?

But They Said it’s Just for Routine Questioning

Deception is a legitimate tool for law enforcement.  Many police can be highly manipulative in taking a softer, more friendly approach to an interview suspect.  In Dallas and Collin Counties, jurors will applaud police who can craftily get confessions after trial and the Defendant is on their way to prison.

This article isn’t intended to apply to situations where you may get what is known as a ‘target letter’ of a federal investigation.  In those situations, you should consult a lawyer immediately as well.

*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, you should consult an attorney.

www.thecollincountylawyer.com