Getting a Marijuana Arrest off Your Record

October 26, 2012

By Collin County Criminal Defense Lawyer

(972) 369-0577

www.rosenthalwadas.com

A marijuana arrest doesn’t look good on a resume.  There are obviously much worse charges someone may face — but this doesn’t mean a drug arrest like this should be taken lightly.  It can result in the loss of a driver’s license or even in the loss of financial aid.

What we do in these cases — as with almost all criminal charges — is we plan backwards.  We know our goal is almost always going to be a non-disclosure or expunction, so we do our best to position the final result to have our clients be eligible for non-disclosure or expunction.

Fortunately there are many different ways to be eligible for non-disclosure or expunction.  We thoroughly review the evidence in the case to make sure the state has a ‘leg to stand on’ in bringing the charges.

Merely because someone is found in the same car doesn’t mean they’re guilty of possession of marijuana.  The law requires the state to prove the defendant had “actual care custody control or management” of the contraband in question.  Also, there are frequently questions about how the drugs were attained by the police.  Remember, police often target younger people or people who may dress or act differently.  Sometimes they can be far too aggressive or manipulative in the police encounter and a judge may declare the arrest improper.

Another way we can attempt to clear a record is to have the charges either reduced or to seek invitation into the district attorney’s office pre-trial diversion program.  This requires us to be able to let the prosecutors know our client otherwise has a clean history and can enter a program which helps them if they have drug issues.

The key in making sure we can help someone clear their record is double and triple checking our facts, having a command of the law, and having the know-how to make your case to a judge, jury or prosecutor!

*Jeremy Rosenthal is an attorney licensed to practice in 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 forum does not create an attorney-client relationship and communications sent through this forum are not confidential nor privileged.

 


The Law On Manslaughter and Criminally Negligent Homicide in Texas

October 16, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Manslaughter

Manslaughter in Texas is codified under Texas Penal Code Chapter 19.04(a) and is committed when someone “recklessly causes the death of an individual.”  Manslaughter is a 2nd Degree Felony (2 to 20 years in the Texas Department of Corrections).

The legal definition for reckless is defined by Tex.Pen.C. 6.03(c).  That provision states, ” A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

This legal standard is clearly and obviously subjective. Therefore, no bright line test as to any fact scenario can be indicative of whether a death could be charged as manslaughter as compared to any other form of homicide under Chapter 19.  The best way to show what may be “reckless” is by giving some examples of cases where convictions for manslaughter were upheld on appeal.

Examples of Manslaughter Cases Upheld on Appeal

In Threet v. State, 2003 Tex. App. LEXIS 4136 (Tex.App. — Austin, 2003), Defendant was convicted of manslaughter where he and the victim, another college age student, got into an argument at a house-party and went outside to “trade licks.”  The victim punched Defendant first in the chest, and the Defendant then punched victim in the face.  When the victim fell to the ground, Defendant continued to punch him several times then kick him in the head with a hiking boot.  The victim died later that evening.  Defendant was indicted for murder, but was convicted of manslaughter, a lesser-included offense.

In Willis v. State, 761 S.W.2d 434 (Tex.App. — Houston [14th Dist]), Defendant was similarly convicted of manslaughter where he struck a man with a pistol-butt on the head on the steps leadning into a pool hall.  The victim fell backwards and struck his head on the board.  The victim broke his neck and died the next day.  Similar to Threet, Defendant was originally charged with murder but the jury found the lesser-included offense of manslaughter to be appropriate.

Manslaughter is similar, but should not be confused with intoxicated manslaughter which you can read about here.

Criminally Negligent Homicide

Criminally negligent homicide is defined by Texas Penal Code Chapter 19.05(a) and is committed when someone causes the death of an individual by criminal negligence.  Criminally negligent homicide is a State Jail Felony (between 180 days and 2 years in a State Jail institution).

Criminal negligence is defined by Tex.Pen.C. 6.03(d) and is occurs when someone is “criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

Again, this standard is extremely subjective, so here is a case where appeals courts have sustained convictions for criminally negligent homicide:  Chambless v. State, 368 S.W.3d 785 (Tex.App.– Austin, 2012), Defendant woke up in the middle of the night due to noises in his front yard.  Assuming it was a neighbors dog, Defendant fired a semi-automatic rifle three to five times into the yard.  Unbeknownst to Defendant, the victim, a neighbor was in his yard and had been hit by the bullets.

*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 about any situation, you should consult an attorney directly.  Contacting the attorney through this forum does not create an attorney-clien relationship.  Communications sent through this forum are not confidential nor privileged.


Is My Driver’s License Valid Immediately After a DWI Arrest in Texas?

October 2, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Yes.  Here is a link to the State’s DIC-25 warning which you should have been given prior to having taken or refused the breath test.

Even though your physical drivers license was probably taken by the officer if you refused the test or blew over 0.08, this warning states in bold letters your license isn’t actually suspended for 40 days.  The document itself actually serves as your temporary driving permit for the 40 days.

Additionally, your license isn’t even automatically suspended after the 40 days if you appeal the suspension. In that case, your license wouldn’t be suspended until after the administrative judge rules on your appeal (and even then — only your appeal is denied).

If you voluntarily submit to a blood specimen, that specimen obviously needs to be analyzed.  It’s typically shipped to a Department of Public Safety Lab where there is a wait to have it analyzed.  In those cases where the blood comes back over 0.08, DPS should send you a notice giving you 20 days to appeal the suspension.  But even then, the suspension is not immediate upon the arrest.

It’s a common mis-impression that you’re not even allowed to drive the very next day after an arrest which law enforcement is happy not to clear-up.  This is part of the pressure tactic to attempt to persuade people to submit to breath or blood tests.

*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 about any matter you should consult an attorney directly.  Contacting the author through this forum does not create an attorney-client relationship.  Communications through this forum are not confidential nor privileged.

It’s a common mis-impression