How You Clear a DWI from your Record in Texas

May 18, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Until recently the only way to hide a Driving While Intoxicated Arrest from the Public was to win your case or have it dismissed.  Often a tall order.

The Texas Legislature passed & the Governor signed a law in 2017 allowing non-disclosures for DWI cases where the person qualifies after a DWI conviction.  A non-disclosure hides the arrest and court records from the public.  It can still be viewed by many public entities and it shouldn’t be confused with an expunction which is a complete destruction of the arrest records.  But its still pretty good.

Remember you have to file additional documents to expunge or non-disclose records.

There is a big debate amongst lawyers whether this provision is retroactive — that is whether you can clear something which happened prior to September 1, 2017.  Early returns suggest you can.

Here’s how you qualify to non-disclose a DWI:

  • First time offense
  • No car accident in the arrest
  • Blood Alcohol Concentration (BAC) below 0.15
  • Get probation for your DWI
  • Have Interlock Ignition Device on your car for 6 Months of your probation.
  • Wait 2-years from the date your probation ends

The provision was like lightning from a clear-blue sky.  As you can imagine, DWI arrestees have been a punching bag for politicians in Texas for the past 40 years.  Interestingly, there is no requirement you plead guilty — which means you could take your case to trial and if you lose — still qualify for the non-disclosure.  It would give a DWI arrestee two bites at the apple so to speak.

Last two things — (1) if you’ve been charged with DWI in Texas, make sure the record is clear at your plea (or sentencing after trial) that you meet all of these requirements to make it easier down the road.  (2) If you’ve got a DWI from 2017 or before, check to see if you qualify.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and he is licensed to practice by the State Bar of Texas.

 

 


Will I Be Sentenced to Jail Now That I’m Accused of DWI, Theft, Domestic Abuse, Drug Possession…. or Any Crime for that Matter?

February 8, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This is probably the no. 1 question on the minds of many who come into my office.  It’s a completely normal question I’d and probably worry about you if you didn’t care.

Obviously I can’t say yes or no unless I hear whats going on first.

Even then I can’t make promises though I can tell someone they’ve got a better chance of winning the lottery or getting struck by lightning than going back to jail after an initial arrest.

By the time most people are pondering this question it is as if a grenade has exploded in their living room.  They or a loved one have gone through an ordeal they never imagined they’d face — going to jail then getting released on bond.

Then you or your loved ones read about sentence ranges for the particular charge and it’s hard not to fixate on the high number at the end of the punishment range to the exclusion of everything else.  It is completely normal to have high anxiety wondering about the end result of the case and not knowing anything about the criminal justice system doesn’t help.

Here’s What I Can Say

The vast majority of people I help worry far too much about something totally unrealistic.  They exaggerate their chances of going to back to jail in their own mind. Totally normal.

Law enforcement trends in most populated cities and suburbs in Texas are to lower inmate population.  People with little or no criminal history simply don’t jam the jails on misdemeanor or low-grade felony offenses these days.  Major emphasis is being placed on identifying other ways to address issues such as mental illness, addiction and even anger issues or conflict resolution other than jail.

And by the way… I’m going to work my hardest to acquit someone or get their case dismissed before we even get to jail questions!

The greatest chance for jail in someone’s future for someone coming into my office on most cases is violating terms and conditions of bond or probation.  In other words, they may go back to jail if they use illegal substances, miss court, or drink alcohol when ordered not to do so while waiting for their case to be resolved or after they’ve been put on probation.

The good news here is the person is still in control of whether or not they face future incarceration.  More good news is when people do go to jail on bond or probation violations — the time in jail is measured in days or weeks and not months or years.

I end up telling many people it is unrealistic to worry about future jail.  I don’t mind repeating it 35 times if that is what it takes to take away the feeling a house has landed on you!

Normally my greatest concern is not future jail — it’s keeping your job and keeping your criminal history as clean as possible.  This is a more realistic fear in many, many cases we handle.

When Jail is a Worry

There are times to worry about a jail sentence and not every place in Texas is the same.  Each case is its own snowflake so trends I’ve discussed above may or may not apply to your situation.

The more severe the charge — the more likely it is we can’t safely rule future incarceration out.  Even then we rarely realistically discuss worst-case scenarios.

*Jeremy Rosenthal is Board Certified in Criminal Law and is Licensed to Practice Law in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice you should see an attorney directly.

 

 

 


A Small Habit Which Contributes to Convicting the Innocent

October 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Police agencies have public relations personnel.  Their job is to issue press releases.  Normally the press releases answer relevant questions the public has demand for.

We all want to know about bad crimes which affect our safety or our community.  We need to know if a killer is on the loose or if an elected official is a crook.

But police agencies and their PR people are human.  They are trying to paint the agency, their investigative abilities and their protection of the public in the best light possible.

Look at the DUMB Criminals!

I’m not sure why, but sometimes you get press releases which result in articles like this.  Two people were caught with methamphetamine on a routine traffic stop and one claimed he was wearing pants that weren’t his.  Hardy har har.

I’m assuming this was from a press release.  I don’t know how else a beat reporter would get such specific details from a crime blotter.  Normally this degree of detail would require access to a police report, PR person or press conference.  I don’t blame the reporter for running with it.  They’re just doing their job.

This is what I call a “look at the dumb criminals” release.  I’m not going to lie.  The defense this guy used is amusing.  For about 30 seconds.

Blake Long and his girlfriend aren’t city council members, aren’t celebrities, and aren’t law enforcement officers.  They’re the punchlines and the foil of today’s joke.

What I See in the Article

What I see is two things:  First is a mother and father somewhere with a broken home and with broken hearts because of their adult child’s self-inflicted disease… and second I see readers (jurors) who are being taught to presume anyone sitting at Defendant’s table guilty and not innocent.

The Same System of Justice

The same system of justice is responsible for apprehension and conviction of Blake Long and Michael Morton — wrongly convicted of murder and released after decades of confinement.  Sometimes we need to remind ourselves of this fact.

We like to pretend these two arrests happened in different worlds, on different planets, in different justice systems.  But they didn’t.  They happened in the same one.

So how are they connected?

They display polar opposite concepts in the criminal justice system.  Between the Long arrest and the Morton arrest are tens of thousands of other arrests where guilt and innocence are more blurred.

When we win cases, we don’t typically make a big deal about it in the criminal defense world.  Our clients want anonymity.  They want the thing over.

Do yourself a favor next time you see or hear a “look at the dumb criminals” story and look deeper.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation contact an attorney directly.

 

 


Background Checks

April 12, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I get asked about the dreaded background check a lot.  As in every day.

The whole point of criminal defense is (1) keeping my client out of jail; and (2) keeping my client’s record as clean as possible.  It stands to reason this is a huge concern for everyone who comes into my office.

I’m a criminal defense lawyer and I can bore you about the rules of evidence, the Constitution, and what the 5th Court of Appeals in Dallas has been up to all day long.  I’ve picked up a thing or two about criminal background checks along the way so here is some basic info:

Who Keeps Criminal Records?

Criminal records are kept by the Federal Bureau of Investigation (FBI) and the Texas Department of Public Safety (DPS).  The FBI’s database is called the “National Crime Information Center, or “NCIC” for short.  DPS maintains the “TCIC” or the Texas Crime Information Center.  Every time someone is arrested in Texas they get both a TCIC and NCIC tracking number.

TCIC and NCIC records are not public and it’s actually a crime for someone to disseminate it to the public.

Also city and county jails keep records with varying degrees of success as well.  This could show arrests or tickets on a city level which may or may not get reported either to the TCIC, NCIC or online.  Some publish citations directly to the public.

Private companies are allowed to purchase records.  These companies in turn re-format them to make them more user friendly and are the traditional back-ground search companies typically used.

So How Does a Background Search Work?

Police and law enforcement can directly access TCIC and NCIC records when they run a report.  Everyone else has to go through a private company.  Some search engines are more reputable than others.  Again, the private search engines typically purchase records and provide a more user-friendly product to whomever is doing the search.

So generally a lender, employer, or apartment complex first has to have a legal reason and/or authorization to run your background check.   This is under the Gramm-Leach-Bliley Act of 1999.  When logging onto the search engine a user is asked the purpose of the search.  Not to get too bogged down on this point, people can’t run your back-ground just to do it.  They have to have a reason.

Will The Background Search Be Accurate?

It’s a human process so there will be an error rate.  An additional problem is prospective employers, bankers or landlords also tend to not understand what it is they are reading.  Ultimately you have to recognize the world isn’t a fair place.  Bad background searches will happen and even a good result from a criminal case can be mis-read by someone making a hiring decision.

Some Anecdotal Good News

Experience teaches me a few things about background searches.  First, is when someone or their loved one is charged with a crime — there is a feeling every eyeball in the planet is on them.  It is common to feel everyone knows everything about what they are going through.  This is not true.  Additionally, background checks are probably much more rare than you think.  Not everyone is running you every day.

Also my experience is most employers tend to take a ‘wait and see’ attitude when they do learn of something negative on a background report.  They are afraid to take action and really do want to get both sides of the story before they make a decision.  This at least allows the person a chance to explain their side.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about this or any situation you should contact an attorney directly.


Will My Employer Find Out if I’m Arrested?

December 2, 2016

By Texas Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I get asked this a lot.  My guess is normally employers don’t find out but information is a hard thing to control.

Will the Police or Courts Notify My Work?

Rarely.  Most State and even Federal courts are inundated with case after case.  Usually your case is nothing special to them and they’ve got their own issues to deal with or worry about and there’s really no reason for them to go out of their way to hurt someone’s ability to make a living.  Plus they understand notifying an employer for any reason is — how should I say politely — “messed up” or “below the belt.”

What Are Situations Where Police or Courts Would Notify My Work?

One way work finds out is in cases where law enforcement really doesn’t like someone they will have them arrested at work.  Maybe they think it’s flashy or they feel entitled to humiliate someone.  This almost never happens on garden variety arrests for assault, DWI,  or theft.

Sometimes a Court could impose work related restrictions as a condition of bond or probation.  That could be related to driving company vehicles in a DWI case, or potentially limiting or monitoring travel in some felony cases.  Some sex cases might involve the accused not being able to work around children until the case is finalized.

Another rare reason might be someone from work could be called as a witness or by an investigator for some reason (assuming the criminal charge isn’t work related to begin with).

Your work could learn about the criminal case too due to absences for Court or because you find yourself in a funk where others around you are wondering what’s been eating at you.

What Will A Background Check Show?

In this information age, you should assume a background check will show your arrest and/or charges.  There is an error rate like with anything else and it’s not 100% your arrest will show up or be accurate.  But it’s best to be honest if you’re asked about an arrest.

Do I Have to Tell My Employer?

Read your company hand-book.

Texas is an at-will state for employment purposes so you can be hired, fired, promoted or demoted for good reasons, bad reasons or no reason at all.  This means you can be fired for not telling your employer if your hand-book says you must.  You can also be fired if you do tell work you were arrested, unfortunately.

My experience is with most charges employers take a “wait and see” attitude.  Many are actually extremely supportive.

Obviously I don’t know your employer as well as you do.  So disclosing an arrest is understandably a calculated gamble.

Expunctions and Non-Disclosures

See if you are eligible for an expunction or a non-disclosure when your case is over.  These can eliminate or lessen the amount of public information available about your case.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For advice about any situation you should contact a lawyer directly.

 

 


“My Lawyer Changed His Tune”

October 28, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

My favorite thing to be able to do in my practice is give great news and if I can’t do that — then at least folks can leave my office with hope and optimism.  Giving great news, giving people hope and a reason to feel optimistic has to be honest, realistic or based in fact or it’s destructive.

I hear “my last lawyer changed his tune” a lot when I talk with people who either are getting a second opinion about their case or from someone (or their family) who had a bad experience in the legal system.

They tell me their lawyer was really excited at the onset of their case about the prospects for getting a case dismissed, acquitted or charges reduced.  At some point later, the lawyer’s attitude and demeanor seemed to change and all the news turns bad.  Instead of gallantly fighting — the lawyer is insisting the client plead guilty.

I’m always disappointed to hear this and it does make me reflect a bit about what really went on.  I do my best to understand not only from the client’s side but also the lawyer’s side.

Here are some of the reasons this is a recurring problem in my view:

The Lawyer is Afraid of the Courtroom or is Risk Averse

Some lawyers are simply intimidated by the prosecution, by juries, or even by certain judges.  They give you a very rosy outlook in the comfortable confines of their conference room, but when the lights get bright or when the prosecutor begins to gnash their teeth —  they wilt.

Other lawyers are afraid of risks.  Trial is to lawyers what surgery is to doctors.  Some always err on the side of playing it safe.

Risk is a part of the practice of law, in my view.  Often my clients are less risk averse than I am and other times they want to take risks I try to talk them out of!  There are times when a lawyer has to firmly let the client know the risk must be taken.  Some lawyers can’t do that.

The Lawyer is Inexperienced

Inexperienced lawyers make a handful of mistakes.  First, they fail to see the downside to a case when it walks in the door.  When they hear the facts of what happen — they often see great issues but their lack of experience may fail to see how certain issues tend to collapse or be more difficult to handle than they originally thought.  They also lack the experience to foresee other developments which might change their outlook on the case.

Some lawyers really do get excited about your case but their mis-evaluation of it causes them to change course which is difficult to understand and can be confounding to the client.

The Lawyer Fails to Set Proper Expectations

Some lawyers do see the pitfalls in your case but over-promise in hopes of getting business.  This invariably backfires because when the case does become difficult, the lawyer is forced to retreat from their earlier optimism without any real reason.

The experienced lawyer knows hard truths up front equal a satisfied client at the end of the case.  My hope is my client understands that I’ll fight as hard as I can for them regardless of whether my outlook is rosy or bleak at the onset.

 

Sometimes the Case Really Does Change for the Worse

Every case is it’s own snowflake… unique and distinguishable from anything and everything else.  The more and more cases I handle, the less unpredictable developments happen.  But unpredictable developments do happen even in the most common types of cases.  New and unforeseen facts can arise about an existing case or things unknown to me about my client’s past can crop up and present a bigger hurdle than originally considered, or sometimes just a change in prosecutor can throw things for a loop.

What Your Lawyer Should Have Done…

Lawyers can avoid “changing tune” in the middle of the case by setting a realistic tone from the outset.  This is a function of experience of knowing the variables to come in the case and how they typically break, having the discipline to “tell it like it is” to the client up front and temper optimism with appropriate caution, and to show the proper follow-through with risk associated with the case.

I hope this helps anyone in this predicament understand.

*Jeremy Rosenthal is licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


What is the Difference Between a Misdemeanor and a Felony?

June 30, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Felonies are punishable by possible jail over 1 year and misdemeanors are punishable for 1 year or less under Texas law.

Beyond that, Felonies obviously carry a somewhat more negative stigma meaning it is more difficult to be hired for a job, get a loan, or even be allowed to coach your child’s athletic team.

Collateral Consequences

Felonies also carry more collateral consequences — or consequences which aren’t directly related to criminal punishment itself than misdemeanors.  For example, being a felon can make firearm possession illegal, can prohibit you from holding public office or even from voting.

Felonies typically have more adverse immigration consequences than misdemeanors though immigration courts tend to use their own guidelines when determining the severity of a crime.

Crimes of Moral Terptitude

Some misdemeanors can have consequences every bit as severe as felonies.  Examples can be theft charges which can make professional licensing more difficult.  A theft charge on someone’s record can cause someone to lose job opportunities where trust is required such as an being a bookkeeper or sales clerk.

Affirmative findings of family violence can also carry felony-like consequences for the purposes of future enhancement or the denial of 2nd Amendment firearm rights.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly.