Why You Have the Right to Remain Silent at Trial

March 24, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The Fifth Amendment to the U.S. Constitution provides in relevant part, “(No person)… shall be compelled in any criminal case to be a witness against himself.”

It’s really an amazing right when you think about it.  In America, not only do we have the right to be free of having to “explain yourself” when accused of a crime — taken a step further — you have the right to deny guilt to your grave if you so choose.  Your government can never force you to say you’re guilty regardless of how long they imprison or threaten imprisonment of any person.

The Fifth Amendment in many ways is what separates us from countries with backward senses of justice.

I try to explain this to jurors very simply.  In America, we focus on the evidence from the accusers.  In other countries, they ask loaded questions and then look the accused’s face to confirm the pre-existing belief the person is guilty — a practice consistent with judging witches.

Jurors quickly realize it’s impossible for 3, 4, 6 much less 12 people to agree on the truthfullness of someone accused trying to tell their side of the story.

Some see “crocodile tears” as an act, and others see them as sincere expressions.

Some jurors see confident testimony as rehearsed, while others may see it as convincing.

Some jurors may see someone who shouts his innocence as lying and others may view it as truthful.

Science tells us that not only are polygraphs not even scientifically reliable enough to be admissible in court — and humans are even worse at distinguishing lies from the truth.

The framers of the Constitution knew even back then — this method of accusation was a game.  And an unfair one at that.

*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 this or any other legal topic you should consult an attorney directly.  Communications through this forum are not confidential nor privileged.


Underage Alcohol Consumption or Possession Reference Guide

March 11, 2013

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Several main Texas laws impact minors who mix with alcohol under the Texas Alcohol Beverage Code.  First, the good news.  Though Texas prides itself on being tough on crime, all charges I’m discussing today are Class C Misdemeanors with multiple ways of getting them off a criminal record.

Below are my abbreviated description of the statutes.  If you enjoy the more precise legalese of the Texas Alcohol Beverage Code, you can read the laws here.

 

1.  Minor in Possession (also called an “MIP”)

Texas Alcohol and Beverage Code (“TABC”) 106.05 makes it a crime for a minor to possess alcohol.  Possession is defined by Texas Penal Code 1.07(39) as “Actual Care, custody, control or management.”

This simply means the officer and the prosecution must prove the minor did more than be in the mere presence of alcohol and did some affirmative with respect to the alcohol.

The legal defenses to MIP are (1) handling alcohol in the course and scope of employment of a properly licensed business; (2) if the minor is in the visible presence of a parent, guardian, or other person committed to the minor by a court; (3) if the minor is working for police enforcing this law.

 

2.  Minor in Consumption (“MIC”)

Texas Alcoholic Beverage Code 106.04 makes it a crime for a minor to consume an alcoholic beverage.

There is a defense and safe-harbor provision to minor in consumption.

It is an affirmative defense for a minor to drink alcohol in the presence of an adult parent, guardian or spouse.

The code provides a safe-harbor to encourage minors who are drinking to assist in emergency situations.  The safe-harbor provision protects a minor consuming alcohol if the minor was the first person to request emergency medical assistance to another person who has over-dosed on alcohol and who remains on the scene to assist medical responders.

 

3.  Driving Under the Influence (“DUI”)

A minor commits DUI if they operate a motor vehicle in a public place having consumed a detectible amount of alcohol.  A DUI should not be confused with DWI (“Driving While Intoxicated“) under Chapter 49 of the Texas Penal Code.

Adults cannot be charged with DUI, but minors can be charged with DUI and/or DWI depending on their level of consumption/ intoxication.

Though a DUI is a Class C Misdemeanor, it still carries a potential driver’s license suspension.

 

4.  Purchase (Or Attempted Purchase) of Alcohol By a Minor

A minor who purchases or tries to purchase alcohol commits an offense if they are not under the direction of law enforcement at the time of the act.  

 

5.  Misrepresentation of Age of a Minor

A minor commits an offense if they state they are 21-years-old or older to try and purchase alcohol or present false documentation attempting to purchase alcohol.  

 

A brief not about punishment:  Again, each of these offenses is a Class C Misdemeanor.  TABC 106.071, however, does provide for possible enhancement if the minor has been previously convicted of the same offense at least twice before.  This would turn the charge into roughly a Class B Misdemeanor.  

These enhancements, however, are extremely rare.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about this or any other topic, please consult an attorney directly

 


Drug Trafficking Charges

March 7, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

If you are charged with drug possession with intent to distribute or drug trafficking — you are being called a drug dealer.

How People Get Charged with Selling Drugs

Most drug trafficking cases are far from what we see on TV.  In my unscientific view, the vast, vast majority of people accused of selling drugs live very humble lifestyles and aren’t like Tony Montana from scarface (though prosecutors don’t mind jurors thinking this).

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People are arrested often selling small amounts of drugs such as marijuana, cocaine, or prescription pills like xanax or hydrocodone.  Most people accused are normally users themselves.

Many arrests are through confidential police informants (generally someone facing drug charges themselves).  Other arrests occur in places like schools when one student is accused of bringing and sharing their parent’s prescription pills.

Federal or State Prosecution

Selling drugs can either be prosecuted by the Federal or State authorities.  The prosecutions differ greatly.  This blog mainly focuses on the State of Texas’ and it’s prosecution of drug trafficking cases.  Here and here are good resources on Federal drug conspiracy charges.

The Law on Possession with Intent to Distribute

When police charge someone with selling drugs instead of just possessing them, the charge acts to enhance the original charge normally by one degree.  For example,  someone charged with possession of less than 1 gram of cocaine with intent to distribute is facing 3rd degree felony charges.  Here’s the math:

Cocaine possession >1 gram = State Jail Felony + intent to distribute = 3rd Degree Felony

Here’s another example:

Possession of between 80 and 400 tablets of LSD = 2nd Degree Felony + intent to distribute = 1st Degree Felony.

Here is a quick link to a drug offense level chart and  basic Texas punishment levels.

What Constitutes Intent to Distribute?

Courts look to several factors when deciding what constitutes whether someone is selling drugs:

(1) where the defendant was arrested and the nature of the location;

(2) the quantity of controlled substance in defendant’s possession;

(3) the manner of packaging;

(4) the presence of drug paraphernalia associated with use or sale;

(5) the defendant’s possession of large amounts of cash; and

(6) the defendant’s status as a drug user.

None of these factors is conclusive, but all play a role in the analysis.  An effective and experienced advocate can help explain a situation that doesn’t look good to a jury.

What to Do if You’re Charged with Being a Drug Dealer?

These are serious charges.  The enhancements can and often do turn what might normally be an understandable drug charge into a felony where prison is possible.  The charge is also stigmatizing and can be a serious blow to future goals and plans.

If you are being charged with or investigated for selling drugs, you must have competent counsel.

*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 this topic or any specific situation you should contact an attorney directly.