I Just Got Arrested for DWI. Is My Texas Driver’s License Still Valid?

September 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Yes.  If you have just been arrested and released for a DWI in Texas, then your Texas driver’s license will not be suspended for 40 days from the date of your arrest.

You should be given several documents during a driving while intoxicated arrest — usually two yellow carbon copies.  One is your statutory warning about the consequences of refusing or taking a breath or blood test (DIC-24) and the other is your temporary driving permit (DIC-25).

The DIC-25 states in the fine print, “This permit is valid for 40 days from the date of service shown below.  If you request a hearing, this permit will remain in effect until the administrative law judge makes a final decision in your case.”

English translation — you still have a drivers license.  If you appeal the suspension (you have 15 days to do this), then the DIC-25 is your driving permit until your appeal is ruled on by an administrative law judge.  If you do nothing, the yellow sheet is your driving permit for 40 days.  Either way, you are perfectly okay to drive if you have a Texas license.  At least for now.

Normally if you take the breath test and fail or if you refuse the breath test, the arresting officer confiscates your license on the spot. Again, this doesn’t mean you can’t drive.  You do, however, have to pay attention to the fine print.

If you take a blood test, then normally they don’t take your drivers license because they don’t know if you passed or failed the test.  In those instances, you have to check the mail for a letter from DPS indicating whether your blood result has triggered a possible suspension.  If it has, then you still have time to file your appeal.

If you’re in the situation where you were just arrested for driving under the influence within the past few days, then you’re still in a position to maximize your full options with regards to your driver’s license.  You can appeal the officer’s decision to ask you to take the breath test and you can get an occupational driver’s license in the event your license is ultimately suspended.

Unlike a fine wine, your options don’t get better with age.  So now is the time to get into decision mode.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For legal advice about any issue, you should consult an attorney directly.  Communicating to the attorney through this blog does not constitute an attorney client communication and nothing communicated herein is considered privileged.


Texas DWI Punishment Gets Tougher for First Time Offenders. Again.

September 11, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

A person with a blood alcohol concentration with a 0.15 or higher at the time the test is taken can now be charged with a Class A misdemeanor DWI instead of a Class B if it is their first offense.  This change took effect as of September 1, 2011.

First, let’s discuss the practical effects of the change.  A Class A misdemeanor on a DWI is punishable between 30 days and 1 year of county jail and a fine not to exceed $4,000.  A Class B DWI is punishable by between 72 hours jail and 180 days and a fine not to exceed $2,000.   Unlike a 2nd DWI, however, this law does not require the defendant serve 10 days as a term and condition of probation — meaning that a person doesn’t have to go to jail for 10 days just to be granted probation.

Second, you can see that I’ve italicized the words above “at the time the test is taken.”  This is a significant departure from normal drunk driving law which prohibits one’s blood/ alcohol concentration being above a 0.08 at the time of driving.  This is a “tie goes to the prosecutor” provision because it is very difficult for prosecutors to prove whether a person’s blood alcohol concentration was higher or lower at the time of driving due to a process known as retrograde extrapolation.  So this twist is really just punishing people who have blood alcohol concentrations that are on the rise when they are driving.

Texas’ prosecutorial mentality of “when you have a hammer, everything looks like a nail” with this new change gives a person even more incentive to refuse a breath test and to take a DWI to trial.

*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 contact a lawyer directly.  Contacting the attorney through this blog does not create an attorney-client relationship and no communication is considered privileged.

 


Criminal Law and Psychology

September 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawer.com

One of the things I geek out on in my practice is how psychology intersects with criminal law.  It never ceases to amaze me how the applications of this field of science could affect virtually any type of case ranging from marijuana possession and driving under the influence, to robbery and murder.

I am obviously an amatuer psychologist at best, so I’ll apologize and defer to any real psychologists that read my blog and take issue with anything I say.  Also, I’m well aware my discussion today only scratches the surface.

Our brains are constantly processing, prioritizing and often distorting information.  It’s part of being human.  My belief as a criminal defense attorney is that I have understand this is the case for everyone — myself included.  Not only do I have to understand this is the case, but I have the challenge of demonstrating to a judge or a jury the explanation may not be a clear as it appears.

Police approaching a driver may be influenced by all sorts of things which affect their perception… not the least of which are past experiences, biases and prejudices.  For reasons I don’t understand, police may also feel the need to be controlling to the point where they feel justified in manipulating someone into allowing them to search a vehicle or take take field sobriety tests.

Then there is the person that is pulled over on the road-side.  The presence of an authority figure in uniform can be extremely powerful… to the point that someone would capitulate to an unreasonable officer request even though the person may know it their legal right to refuse — and in their legal best interest to refuse.  The interplay between an officer with the need to control and an every-day person who is socially programmed to respect authority figures fascinates me an it’ often critical to demonstrate to the jury exactly what is going on between the lines so the understand the police’s white-washed version might not necessarily be the entire story.

Again, I could go on all day, but a last example I’ll give is psychology of an everyday person sitting on a jury.  As much as we think a juror reasons the same way we do, a good criminal trial lawyer has to understand that the juror is in a completely different mindset.  Jurors are responsible citizens that merely showed up at the direction of the county, city, or federal government for jury duty.  They are shuffled from room to room and ultimately put into a room full of lawyers they don’t trust trying to tell competing stories.  Jurors aren’t going to naturally gravitate to your position just because you think you’re so clearly right and the other side is obviously wrong.  Studying juror psychology, though, helps a good criminal trial lawyer shape and sculpt his message so that it is consistent with the jurors’s pre-existng values, beliefs, and biases.

As an attorney that frequently tries cases ranging from DWI and drug possession to aggravated robbery and other serious felonies, I make it a priority to know and understand all the psychological interplay more than my opponent prosecuting 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 about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship and communications sent to the attorney are not considered privileged.


K2 is Now Illegal in Texas

September 2, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The Texas Legislature in 2011 has made possession of the synthetic form of marijuana, popularly known as “K2” illegal. Synthetic cannabis blends have been around for the past decade or so.  Many think they achieved an effect through a mixture of legal herbs. In reality, it contains synthetic cannabinoids which act on the body in a similar way to cannabinoids naturally found in cannabis, such as THC.

The penalties for possession of K2 are no different than for possession of marijuana.  That is, it can be either a class a or class b misdemeanor depending on the amount possessed.

The same legal definition of possession applies as with any drug.  That is, possession is defined by Texas Penal Code 1.07(39) as actual care, custody, management or control.

*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 consult an attorney directly.  Contacting the attorney through this forum does not constitute legal representation and contact information is not privileged.