Collin County’s Deferred Prosecution Program

May 31, 2010

A couple of years ago, the Collin County District Attorney’s office decided to institute a deferred prosecution program for young people (17 to 21 years old) accused of minor offenses.  The D.A.’s office sends out letters inviting people to contact the probation department for the program if they think you’re eligible.

If you can qualify and successfully complete the program — then it’s possible you can qualify for an expunction without having to risk going to a trial.  In theory, it’s a great concept and a win-win deal.

In practice it isn’t quite that simple.  There are some pitfalls to watch for.

Here’s Why You Should Contact a Criminal Defense Lawyer Before You Agree to Apply:

1.  You have to Confess to Be Eligible. The entire theory behind the Deferred Prosecution Program is getting “help” for the “youthful offender.”  My only guess is that this somehow helps with accepting responsibility as part of “treatment.”  By confessing to whatever crime you’re accused of committing, you’ve often sealed the DA’s office legal case against you should you not be accepted into the program or the program not work out.  This brings me to my next point.

2.  The Program is Hard to Complete. The program administrators are under extremely strict marching orders to report and toss anyone out of the program for the slightest infractions.  They define a violation as anything they interpret in their sole discretion as being an infraction.  This means that even you dispute whether you’ve violated a rule — you’re still gone without a chance to complain to anyone.  They can and do throw out participants on a frequent basis.  They’ve got your confession now to use against you in formal prosecution.  This seems inconsistent with “helping youthful offenders” but this is they way they’ve chosen to run their program.

3.  The Waivers and Terms are Extremely One-Sided. The prosecutors and probation officers don’t know anything about the case — except that you’re guilty of whatever the police said you did.  They view this program as purely charity towards you.  Therefore, they are justified in having every term extremely slanted in their favor (see above — that a violation is determined in their sole discretion — and that’s just one example).  You also waive more complicated things such as the statute of limitations which could push-off or even possibly nullify your ability to get an expunction (although they dispute this).

4.  The DA’s Office is Legally Your Opponent. Texas Disciplinary Rules of Professional Conduct Rule 3.09(c) states, a prosecutor in a criminal case shall “not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.”

5.  A Criminal Defense Lawyer is Your Advocate and Voice. Collin County’s Deferred Prosecution Program makes me as nervous as a long-tail cat in a room full of rocking chairs.  I’m not suggesting it can’t be a great way to clean a criminal record while minimizing risk — but I am suggesting you know what you’re getting into first.

A criminal defense lawyer can point out one or ten possible defenses that it’s not the DA’s office or the probation office’s job to point out.  Also, a criminal defense lawyer experienced with how the program is administered can advise you in advance as to whether entering into the program — and all it entails — is truly what is in the best interest of the accused.  The prosecution only thinks they know how to do this better.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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, you should directly consult an attorney.

www.thecollincountylawyer.com


“No Refusal Weekend” for DWIs in Dallas and Plano

May 30, 2010

Cities around North Central Texas are publicizing their “no refusal” policies this weekend for DWI enforcement in an effort to ramp up law enforcement and discourage impaired driving. Some have issued press releases to the media such as this one. They’re beginning to have these weekends routinely on Memorial Day, the Fourth of July and Labor day.

Although the press release doesn’t spell it out, what they are trying to communicate is that if you refuse to submit to the breath test, they’ll simply go to a magistrate that is on standby to get a warrant signed. That warrant will enable them to draw your blood, hence the “no refusal.”

In Texas, the police must be extremely careful not to coerce a person to voluntarily give a breath specimen. When a person is formally offered a breath test, they are done so through documents called dic-23, 24, and 25. Those documents lay out all the dangers and disadvantages of submitting to a breath test.

An officer cannot coerce or intimidate a person into submitting to a breath test in Texas. If an officer alters, amends, adds, or subtracts warnings (generally be editorializing his opinion in some way) about the warnings or what the resulting action may be — then they flirt with having the breath test thrown out under a line of cases called the Erdman doctrine. The vast majority of officers will read the dic warnings in a scripted fashion because they don’t want the results of the test thrown out.

The press release definitely walks a tight rope. They’re trying to curb drunk driving this weekend (which everyone agrees is a good thing). But, by over-publicizing the “no refusal weekend,” it is quite possible that people arrested for DWI submit to the breath test because they fear the police punish a refusal by jamming a needle into their arms. It is interesting, then, that the press release omits any references to warrants, and merely insinuates that medical personnel will just happen to be around.

Maybe they’re afraid some lawyer might try and put the press release into evidence during a trial down line to show the police are just trying to intimidate everyone into submitting to a breath test?

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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, you should directly consult an attorney.

www.thecollincountylawyer.com


Deferred Prosecution for Minors

May 28, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

In Texas juveniles (under the age of 17) that are alleged to have committed crimes can be considered for what is known as “Deferred Prosecution” under Texas Family Code 53.03.

Deferred prosecution means that the juvenile completes an informal probation with the county and if that probation is successfully completed, then the charges are dismissed and not formally prosecuted.  If the juvenile cannot successfully complete the deferred prosecution, then they can be formally prosecuted.

Deferred prosecution for juveniles is better than deferred adjudication is for adults in adult proceedings.  In the adult world, the accused pleads guilty to the underlying charges but forever waives their ability to contest the original charges. Also, in the adult-system, the accused must gain the consent of the prosecutor to get deferred adjudication — not so in the Juvenile Court.  In Juvenile Court, the juvenile has an absolute right to request deferred prosecution directly from the judge AND the juvenile retains the ability to fight the charges later should they be placed on probation… and probation not work out.

Deferred prosecution for juveniles in Texas is almost always a win-win.  The prosecution gets to make sure the juvenile has some sort of semi-formal probation… the juvenile gets a clean record — and just as importantly the juvenile gets to retain his or her important legal rights to fight the case later if necessary.

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

 


Jail Release for a Juvenile Under 17 Years In Texas

May 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(214) 724-7065 (24 hour number)

Juvenile arrests in Texas (children younger than 17 years of age) are different from adult arrests.

Whereas an adult has a right to see a magistrate within 24-48 hours after arrest (depending on the level of offense), a juvenile has no such right.  See Texas Family Code Chapters 53.02 and 54.01.

The Immediate Determination

A Judge or “other authorized officer” makes an immediate determination as to weather the child should be detained under factors which include;

(1) whether or not the juvenile is likely to abscond,

(2) the degree of parental supervision at home,

(3) whether a firearm was involved,

(4) and the likelihood of re-offending if released.

For more specifics, you can read Tex.Fam.C. 53.02.

After the Immediate Determination

If it is determined that the child should be detained under 53.02, then “not after the second working day after the arrest,” the juvenile is entitled to a “Detention hearing” under 54.01.

The Juvenile Detention Hearing

At the detention hearing it is determined whether the juvenile should be detained for an additional 10 working-days based on the same general criterion as discussed above.  After another 10 days, the juvenile is entitled to another hearing.

The Police and Juvenile System Aren’t Always there to Help

This process can be confounding to parents who are dealing with the trauma of having a child arrested.  The police and the state can seem sympathetic, but unfortunately they often bring their institutional mind-frame to dealing with you and your child.

Getting your child released back to you can be a difficult and delicate process under the rules discussed above.  You should seek attorney representation as soon as possible to maximize the chances of getting your child out of the machine that is the juvenile process.

After the release, there are generally charges which must be answered in court.  But that’s another issue altogether.  Obviously an experienced lawyer helps there too.

*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, you should consult an attorney directly.


Self Defense in Family Assault Cases

May 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Self defense is a common affirmative defense in family violence/ domestic assault cases.

The defense is governed by Texas Penal Code Section 9.31.  That provision says (in relevant part), “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”

Self defense is an affirmative defense which means it needs to be raised by the accused (and not merely dis-proven by the prosecution as part of their case-in-chief).

Once the defense is properly raised in trial by the defendant, then the judge can instruct the jury that unless the prosecution dis-proves defendant’s self-defense theory beyond all reasonable doubt — the defendant is entitled to acquittal.

Self defense is raised in many assault cases involving family members — usually spouses.  The law makes no distinction as between male and female and either party may be entitled to rely on the self-defense defense depending on the facts.

Though case law isn’t 100% — most criminal defendants take the witness stand and admit to the underlying assault in order to rely on the self-defense statute.  Courts generally feel it is inconsistent for an accused to claim (1) it never happened; and (2) if it did happen — It was self defense.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas.  He is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For specific legal advice, you should consult an attorney directly.


What Does a Jury Do?

May 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Lawyers take for granted that everyone understands a trial from television — but not even television makes the distinctions very clear.  And there’s no such thing as a stupid question.  Usually.

A jury determines what are known as “questions of fact.”  a judge determines “questions of law.”  The difference can be complicated but here’s a common example that demonstrates the difference.

Take an assault/ family violence case where self-defense was an issue: the judge would determine whether the evidence of self defense was admissible and whether it rises to the level which would allow him or her to give the jury an instruction on self defense.  The judge makes no decision on whether the evidence is believable or not… just that it is sufficient for a jury to consider the defense without completely guessing.

The jury would determine whether the evidence of self defense is believable and whether the state has dis-proven the theory of self defense beyond a reasonable doubt.

Jurors are the exclusive judges of the credibility of witness and decide whether the prosecution has met their burden.  The jury obviously doesn’t rule on objections (because again, it’s the judge that decides the law).

A person’s right to a jury trial is guaranteed by the U.S. Constitution in both civil and criminal cases and is a cornerstone of our legal system.

*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, you should directly consult an attorney.

 


How Long Does a Conviction Stay on a Criminal Record?

May 23, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Forever.

I ask this question frequently when I’m picking jurors and believe it or not, very few people know this.

I guess it’s understandable because not everyone is a criminal defense attorney or have a loved one weighted down with a conviction.

A conviction in Texas stays on your criminal record forever.  It’s hard to quantify the amount of opportunity costs which are lost due to convictions, but everyone has been asked before when renting an apartment, applying for a job, or seeking a loan, to check the ominous box asking if they’ve ever been convicted of anything other than a minor traffic ticket.

Criminal convictions can even hurt you in things such as adoptions, immigration status, and voting rights if the conviction is a felony.  The collateral consequences are countless.  Here is a good article about the costs of picking up a simple marijuana or other drug case.

In this stunning study from Northwestern University conducted in 2001, it was shown that persons with felony drug records where between 50% and 75% less likely to get a follow-up job interview than other applicants with equal qualifications for jobs as sales, management, and wait staff.   This study proves what we already know — that a criminal record is cancer on your ability to make a living.  What it shows us, too, is just how badly a record hurts relative to those without records.

There is no such thing as a small criminal charge.

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