Drug Free Zones

November 23, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Drug free zones are areas created by the legislature where, if drugs are illegally possessed, criminal penalties increase.

Texas Health and Safety Code Section 481.134 governs drug-free zones.  As a rule of thumb, illegal possession of drugs such as marijuana, methamphetamine, or prescription drugs will increase the normal punishment range one level.  As an example, possession of a usable quantity of marijuana under 2 ounces is a Class B misdemeanor in Texas, but if the possession is in a ‘drug free zone,’ the case can be filed as a Class A misdemeanor.

Drug free zones are created several different ways.  Schools, playgrounds and even video arcades can be considered as drug free zones.  Not only are these types of places drug free zones, but the area surrounding them can be drug free zones as well.  Section 181.134 holds that 1000 feet around schools are drug free, and 300 feet around public swimming pools or arcades are as well.

As you can see by reviewing 181.134, it can be highly technical in both how it defines drug free zones and with how it increases penalties.

If you or a loved one is charged with possession of drugs in a drug free zone, it is important that you have an attorney that understands the highly technical nature and the importance of the drug free zone allegations.

*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 about any situation, you should directly consult an attorney.


Probation Conditions

November 22, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

When you’re on probation in Texas, you are given a host of “terms and conditions” of probation (otherwise more formally known as “community supervision.”).  Those terms and conditions comprise the laundry list of everything you’re responsible for doing (or not doing as the case may be.)

Common examples of terms and conditions of probation are community service hours and paying off costs and fines.  Usually the nature of the underlying case is reflected in some of the probation requirements.  For example, in a theft case the prosecutor may recommend an anti-theft class and prohibition from entry into a store where the theft occurred.

For DWI probation, the legislature has made several requirements which must be completed.  Examples are attending a victim impact panel and going to a DWI class.  Recently the legislature has added provisions for drunk driving probation depending on the blood alcohol level of persons arrested.  In cases where the blood or breath test is over a 0.15, a deep lung device must be installed on the vehicle for at least 1/2 of the probation period.

Drug offenders are generally required to give random urinalyses and it is not uncommon for probation on drug and alcohol cases to be fairly intensive.  In some extreme cases (felonies), the Judge can order a person to go to county or state-run in-patient rehabilitation which can take upwards of a year to complete.  Even though the program is essentially prison — it is done as a “pre-requisite” of probation.

It is a safe assumption that a violation of the laws of the State of Texas or any other state can trigger a revocation.

A probation officer does not determine whether you have violated your probation (regardless of what they tell you).  They do have a lot of power, however, in a revocation proceeding.  Usually it is the probation officer that can trigger the violation to be heard by a judge by suggesting the prosecutor file a “motion to revoke” or “motion to adjudicate” in deferred adjudication cases.  The judge determines whether there has been a violation and it is a much lower standard of proof than would normally be at trial.

Read here to learn how a revocation or adjudication proceeding works in Texas.

*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 about any situation you should always contact an attorney directly.


Does The Alleged Victim in an Assault Case Need a Lawyer Too?

November 16, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

I get asked this question from time to time, so today I’ll try and answer it.

The short answer is maybe.  In virtually any assault case, the main evidence comes from the alleged victim who almost always gives a statement to police either at the scene of the arrest or at the police station.

Alleged victims are often later asked to give statement in subsequent proceedings whether it is in trial, statements to a prosecuting attorney, or by signing affidavits of non-prosecution requesting that charges be dropped.  Statements which are inconsistent with the original statement given to police can give rise to criminal liability to the victim.

Texas Penal Code 37.08 covers false reports to police officers and states in relevant part, “A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to… (1)  a peace officer conducting the investigation; or (2)  any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.”

In a nutshell, it is possible that where an alleged victim makes a statement to law enforcement down the road in a case which reveals that they weren’t being truthful at any point of the case when dealing with police or with prosecutors… then the alleged victim themselves can have criminal exposure.

False reports to police officers are class b misdemeanors and carry a punishment of up to 180 days jail and a $2,000 fine.

Also, the attorney representing the accused in an assault cannot also give legal advice to the alleged victim.  This is because there is a very clear conflict of interest for the attorney who represents the accused’s best interests — and has no ethical or legal obligation to protect the alleged victims interests as well.

If you’re the alleged victim in an assault case or domestic violence case in Texas, you may want to seek legal counsel if you have any questions about your rights and representation if so needed.

*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 about any particular case or situation you should directly consult an attorney.


Public Intoxication

November 10, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Texas Penal Code Section 49.02 governs public intoxication.  The statute says Public Intoxication (or a PI) is committed where, “…the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.”

The degree of intoxication is actually greater than the degree of intoxication necessary to be guilty of Driving While Intoxicated.  For a DWI, the standard is that a person “does not have the normal use of their mental or physical faculties…”

A good way to think of it is that with a DWI, you’re deemed to be dangerous behind the wheel.  For a PI, you’re deemed to be dangerous for no other reason that you’re in public.

It goes without saying that Public Intoxication charges are highly subjective.  For this reason, police who need probable cause to make an arrest have a very easy time justifying an arrest for PI.  It’s not uncommon at all for a police officer to make an arrest or two for public intoxication where the officer is dealing with crowd control to try and maintain order.  Unfortunately, it’s also not uncommon for police to make arrests for PI when they become agitated and only have evidence of alcohol consumption.

Due to those types of situation constraints, it is very rare in PI cases that the officer does field sobriety tests or breath testing as they would in a DWI.

Public intoxication is a Class C misdemeanor punishable by a fine not to exceed $500, but can obviously look much nastier on your record.

*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 about any specific case you should consult an attorney directly.


Top 5 Biggest Mistakes People Make After They’re Arrested For DWI

November 8, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

1. Not consulting an attorney.

DWI laws in Texas are out of control. Many times people feel that if they made a mistake — that their prior good record combined with a rational prosecutor and Judge mean that they won’t be treated unfairly. Even if someone is lucky enough to draw such people on their case — the legislature has tied the prosecutor or Judges hands! There’s no deferred adjudication for DWI and related offenses. There are mandatory sur-charges costing thousands of dollars – and that’s just for starters!

The plain fact is that a DWI arrest is more severe than it looks. A skilled, experienced advocate is can assist in evaluating and fighting a DWI arrest.

2. Ignoring the Case

Being arrested can be a very humbling experience. Drunk driving arrests, though, need to be addressed quickly. There is virtually always a drivers license suspension which results from either a breath test refusal or failure and those deadlines run quickly. Unfortunately I’ll see people in denial over their arrest, but important rights can be lost with unnecessary delay.

3. Making Hurried Decisions

Again, an arrest for DUI, DWI or drunk driving is an extremely traumatic event. My experience is that over time, attitudes about the arrest change. It’s not uncommon for me to visit with someone that wants nothing more than to accept the charges and any and all punishment the State has in store for them — only to change their mind down the road based on changed perspective… And certainly the reverse happens too. I always encourage people arrested for DWI to “let the dust settle” in their lives before deciding to hire a lawyer. While it is important to act quickly with a dwi arrest, it’s bad to sacrifice common sense too.

4. Taking Legal Advice from Non-Lawyers.

There are all sorts of “experts” on DWI cases that don’t have any interest in your outcome. Yet many of these ‘experts’ still insist on giving you legal advice. A lawyer is professionally and ethically on the hook when they agree to represent you. Jailers, the bail-bondsman, or a court clerk who may only see you once in their lives may have a decent understanding of the legal machinations of how a DWI works… But getting 40, 50, or 60 percent correct information is a great way to make a bad mistake.

5. Losing Your Head.

I tell my clients that it’s important that they keep their cool. Some cases take a good amount of time to be resolved and that it doesn’t do anyone good to lose sleep over something that works at the speed of government. Many people drive themselves crazy with angst and worry, but good decisions aren’t made that way.

*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 about any specific situation should directly consult an attorney.


What Do I need to Tell My Boss If I Get Arrested?

November 4, 2010

By Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 369-0577

www.rosenthalwadas.com

I’m asked a lot about what someone should tell their boss after they have been arrested.  It’s a great question — even though it’s not squarely what I deal with as a criminal lawyer.

Unfortunately there’s no quick answer and because no two work-places are alike and because no two arrests are alike.  These situations have to be dealt with on a case-by-case basis.

Texas is an “at-will” state which means that in most cases an employer can terminate you for a good reason, for a bad reason, or for no reason at all.  I point this out to underscore how powerless most people are to begin with when it comes to their jobs in the first place.  So it’s possible that you can do everything right and still be shown the door.  But experience tells me that most employers aren’t in a big hurry to get rid of good help.

Some jobs may require disclosure and some jobs may not.  A good place to start is always your employee handbook or employee manual if you have one.  Be sure you understand your company’s policy.

Also if you have a license such as a medical license, nursing license, or commercial driver’s license (as examples), you may also want to make sure you know the rules for reporting arrests that the state may require.  Even though your employer may not care, a professional licensing agency certainly may!

You should understand the precise terminology that your company may be asking for as well as understand the precise status of your situation — whether it be arrest, indictment, pre-trial, or whatever the case may be.

It is my experience that most employers are fairly respectful of the judicial process and don’t require you to confess to keep your job.  Usually they just want to keep their finger on the pulse of your case and aren’t interested in the details until your case is over, and sometimes they may not have much of an interest at all.

Obviously if your arrest is related to your workplace then it’s a completely different ballgame.  In any event, if you have any questions about these issues you should consult an attorney that can help you in complying with your workplace policies.

*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 about any specific matter you should directly consult an attorney.


Weak Judges vs. Strong Judges

November 3, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The trial judge calls many of the crucial balls and strikes at trial including on which jurors are chosen to sit on the panel, what evidence the jury may hear, what arguments the lawyers may make, whether the case even makes it to the jury, and what formal instructions are given to the jury.  While some judges see their role as a referee on the sideline — for better or worse — they play a far more important role.

If the Judge makes mistakes in their rulings — those can be appealed.  Here’s why that’s not as easy as it sounds; (1) appeal can be extremely expensive if you don’t qualify as indigent; (2) the appeals courts rarely over-turn what happens in the trial court and often label the trial judge’s mistakes as “harmless error;” and (3) appeal takes a long time which means if you’re convicted at the trial court you may be serving probation or be sitting in jail waiting for the appeals court to look at the trial judge’s mistake (though you may be able to post an appeal bond).

For better or worse, I categorize Judges into two categories: weak and strong.  Weak judges guess at the law and try to make “safe” rulings which won’t get them appealed.  They often gravitate towards the prosecution because the feel safer ruling in their favor on close issues.

Strong judges know the law and aren’t afraid to disappoint the prosecution or the defense for that matter.  Because strong judges give more predictable rulings, their dockets tend to be more efficient as a whole.

*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 on any specific case or matter you should directly consult an attorney.