Chart for DWI Related Driver’s License Suspensions in Texas

July 5, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Here’s a quick run-down of driver’s license suspension times which relate to Driving While Intoxicated charges (as of July, 2013).

Driver’s license suspensions related to drunk driving charges occur one of two ways: (1) by either a breath/ blood test refusal/ failure: or (2) because of a conviction for DWI.

These determinations are slippery and the code doesn’t do a very clear job of sorting them out.  It’s best to consult an attorney before trying to figure it out on your own.  Also suspension’s listed below due to refusal/ or denial are appealable through Administrative License Revocation hearings (otherwise known as ALRs).  Though the State and police want you to really think these are automatic upon arrest — they really aren’t.

DUI (Minors with any detectible about of alcohol):

1st arrest — 60 day suspension

1 prior — 120 days

2 prior — 180 day suspension

1st DWI arrest (regardless of age):

Refusal:  180 day suspension

Failure (breath or blood over 0.08):  90 day suspension

Conviction: 90 days to 1 year (suspension is abated by classes taken during probation)

2nd “alcohol related contact” within 10 years

Refusal:  2 year suspension.

Failure:  1 year suspension.

Conviction of DWI 2nd: 180 days – 2 years (suspension may be partially abated by classes taken during probation)

Conviction of DWI 2nd within 5 years: 1 to 2 years (suspension may be partially abated by classes taken during probation).

*Jeremy Rosenthal is an attorney licensed to practice in Texas and is Board Certified in Criminal Law.  This is not intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.


Texas Compulsory Blood Draw Laws Now in Question

April 25, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Texas has several compulsory blood draw statutes under the Transportation code. In short police can draw blood without a warrant a for felony DWI arrest which includes DWI with a minor, DWI (3rd or more), or Intoxicated Assault (manslaughter or homicide).

Last week, the United States Supreme Court decided Missouri v. McNeely which may call these laws into question. The Court held a search warrant is necessary to draw blood absent “exigent circumstances” which could give the police a reason for drawing blood without a warrant — perhaps in an emergency situation.  The Court further held that the mere elapsing of time (while the human body eliminates alcohol from the blood) does not, in and of itself, constitute “exigent circumstances.”

In McNeely, the Court held a warrantless blood draw was unconstitutional although the police officer claimed he was not required to under law.

Similarly, in Texas, a police officer could claim no warrant is required for a felony DWI arrest but McNeely might be interpreted to hold the State must still how exigent circumstances to justify the blood draw.

It may take some time before the full implications of this opinion are understood.

*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 case or any other situation you should consult with an attorney directly.


The Biggest Problem with Portable Breath Testing Devices

January 24, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Breath Test Devices in General

In DWI prosecution and defense there are several occasions where a person may give an optional or sometimes mandatory breath specimen.  Obviously at the arrest, a person is given the opportunity to provide a breath specimen.  After the arrest either while on bond or if after conviction — people are often required to submit to testing to start their car or carry a device which tests them periodically.

Only one machine in Texas is currently used and admissible to show a blood alcohol concentration (BAC).  This is the Intoxylizer 5000 which is almost always located at the police station in a special room where DWI arrestees are taken and read statutory warnings.  Any other testing device used in Texas is currently not considered scientifically accurate enough to do anything other than indicate the mere presence of alcohol in one’s system — yet those devices still report a numerical reading.

Other testing devices come in forms such as interlock ignition device (deep lung device or “DLD” for short), portable breath test devices carried by police officers for quick field tests (“PBT”) and portable devices carried around by someone on bond or probation and attached through a smart-phone like connection which requires breath samples throughout the day and reports the results to a probation officer.

Portable Breath Test Devices

Today’s discussion isn’t about the intoxylizer machine but about the other three devices which for today’s purposes I’ll just refer to as PBT technology.  This is because the ladder three devices discussed above operate on what is known as “fuel cell” technology.  Fuel cell technology is highly complex but what is important is (as companies who make and sell services for these devices will readily admit) is these devices are simply not very accurate and extremely susceptible to false-positives.

Common Flaws of PBT Devices

For starters, at least one company claims the accuracy of their device to have a 0.05 margin of error.  In other words, someone who blows a 0.08 might be as high as a 0.13 or as low as a 0.03.  This is the difference between being highly intoxicated and having one glass of wine for some.

The company asks people to wait at least 20 minutes to blow after eating, drinking, or smoking.  The company admits cologne, perfume, hand sanitizer, and toothpaste can result in false positives.  Users are warned not to wear sunglasses or take the test any place where large amounts of alcohol are being consumed.

Courts are admonished by the providing companies the company itself “does not warrant the veracity of readings as evidence.”

The Biggest Problem With Portable Breath Test Devices

The biggest problem isn’t the inaccuracy or fallibility of the testing.  The companies providing these services are honest in telling us what their devices can and can’t do.  The problem is probation officers and courts who treat these device readings as the gospel and mock victims of the short-comings of the technology.

Many probation officers use deliberate and careful discretion in evaluating the results of some of these devices — but unfortunately — some do not.

One thing you learn quickly as a criminal defense attorney is how almost impossible it is to prove a negative.  Failing a PBT test puts you in this position with some evaluators who don’t believe these machines are fallible.  There is virtually no explanation you can give in your defense a probation officer can’t accuse you (or someone testifying on your behalf) of lying about.

What you can do is show how fallible the device might be.  But this assumes the listener has an open mind.  This is the biggest problem with portable breath test devices.

Users are instructed to re-attempt a sample after 10, 20 or 30 minutes to show the first result was a false positive — or if the machine is completely on the fritz — to go to a 3rd party testing agency to prove you haven’t been drinking… Here’s hoping your not in a job interview, the Mojave Desert, or on an airplane!

In Closing

One last admonition from a service provider instructs a person in the event of repeated false positives to have themselves tested by a third party — I’m guessing like an independent test lab.  If that doesn’t get done, good luck telling your probation officer you were in the middle of a job interview, important meeting, or driving through the dessert.  They can see right through those excuses.

*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 other situation, you should contact an attorney directly.


The Top 5 Things You Should Do When Stopped for DWI

December 29, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Texas DWI arrests are like snowflakes in each and every case I’ve seen is unique.  Different police officers think differently from one another and there is no one-right way to “get out” of a DWI arrest.  Being cooperative and giving detailed explanations may work with some officers yet others will actually turn your helpful nature against you.  Having seen hundreds of cases,  I can tell you what normally helps and what usually makes things worse.

Here are the top 5 things you should do when being stopped or investigated for DWI.

5.  Be Friendly and Courteous to the Officer (Remember, You’re On Camera!)

A DWI trial is a rare case where the juror actually identifies with the defendant as much or more than the officer.  Jurors, therefore, subconsciously wonder how they would act towards the police in your situation.  The vast majority of jurors see themselves as being polite, friendly and cooperate regardless of how difficult the officer is being or what he asks the person to do.  If you are a jerk or are mean to the officer, not only are you almost certain to be arrested, but the jury will dislike you as well.

4.  Know Your Rights and Exercise them Wisely

You have the right to remain silent and you also have a right to refuse any of the field sobriety tests offered in the field. If you remain silent immediately after being pulled over, though, you’re daring the police officer to arrest you (and I promise he or she will find a reason).  If you refuse the field sobriety tests, your refusal of the tests is not considered “testimonial” in nature and therefore the jury will know you refused the tests.  Again, you run the risk of turning yourself into the bad guy before the jury.

If you’ve been arrested and mirandized then you should absolutely exercise your right to remain silent.  They think you’re guilty and they’ll spin anything you say into confessions of guilt.  Also remember you’re probably being taped the entire time. Don’t initiate conversations with the police in the station or in the police car.

3.  If You Do The Standardized Field Sobriety Tests

There are three field sobriety tests in a standard battery created by the National Highway Traffic Safety Administration (“NHTSA”).  The three tests are the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one-leg stand.  Rather than geek-out on the details of the tests and studies which validate tests which are conducted and graded correctly by the police, I’ll tell you a handful of truths about the tests.

First is if you get arrested — you can be positive the officer will say you failed the tests no matter how well you think you may have done.  This is because officers — even well meaning ones — are biased graders.  If they think you’re drunk when they first pull you over, you can be sure they’ll nit-pick your performance and find just enough fault to justify your arrest.  It’s not dishonesty, it’s being human.

Second — and most importantly — jurors see the field sobriety tests as potentially unfair.  Again, they tend to see themselves in your shoes on the side of the road.  They know it’s an intimidating environment and they also wonder if they could do the tests themselves.  The HGN is a neurological eye test performed and explained by a person who directs traffic when needed… jurors have a hard time understanding or believing HGN.  As for the other two tests, jurors understand knee, back or weight issues make the tests hard… let alone doing the test with whizzing cars, flashing lights, or gusty winds acting as nuisances.

If you take the tests — you should be sure to tell the officer any medical or physical issues you might have which could affect the test.  This could be knee issues, head injuries, back problems, broken bones etc. etc. etc…  You can be assured the officer will let your medical problems go in one ear and out the other — but the jury will get to hear the problem and they will listen.

2.  Be Skeptical of Representations the Police Officer Makes

My experience is police tend to make up their minds very quickly in DWI arrests then focus on substantiating their conclusion.  Police, though, will never admit this and are trained to manipulate you into cooperating by taking additional test and answering additional questions.

Listen to police with skepticism.  Though they could be sincere in wanting to cut you loose or let you call a friend — it’s just as likely they’ve got their fingers crossed behind their back.

“I just want to see if you’re okay to drive,” sounds to the listener like “I’m thinking of letting you go if you do okay on the test” but it isn’t.  Also statements like “honesty goes a long way with me” or “I can’t help you if you don’t tell me whats going on” sound like the officers decision could go either way… but it’s possible the officer has already called the tow-truck.

1.  Don’t Take the Breath Test

Texas Transportation Code Section 724.013 gives a person a right to refuse the breath test.  The police may try to pursue a warrant for your blood, but this isn’t a certainty and they may not do the application properly.

The Intoxylizer 5000 is the current machine used by the State of Texas.  Though I won’t geek out on it in today’s blog, I can tell you the concern of most experts I’ve worked with is it is simply too general.  A person who blows a 0.12 might actually be as low as a 0.05 at the time of driving or as high as a 0.17.

Additionally, jurors tend to understand refusing the breath test even though they might submit themselves.  They’ve head enough horror stories and they honestly don’t know how much alcohol consumption it takes to get them to a 0.08 either.

*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 specific situation you should contact an attorney directly.


Top 5 Tactics Prosecutors Use to Convict People at Trial

December 29, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It’s obviously important to know your adversary, your adversaries tendencies, and how your adversary thinks.  Having been a prosecutor, it’s easy for me to place myself in their shoes to analyze how I’d have prosecuted the case against my client were the roles reversed.  Today I’ll discuss the Top 5 most common tactics we see in criminal prosecution I see on a regular basis.

Criminal prosecution is a difficult and noble profession.  The vast majority of prosecutors are honest, hard working and consciences.  The rules are (in some ways) much more restrictive against prosecutors who have extremely high expectations of honesty and integrity whereas a defense lawyer usually has an immediate uphill climb with juries.  While creativity is heralded in criminal defense — it is frowned upon in criminal prosecution (often unfairly).

Though I can easily nit-pick prosecutorial tactics and paint them as unfair… probably none of the techniques I describe below were created or have evolved from malicious intent, rather they were created by advocates who may not fully appreciate the harmful effect some of their tactics may have.

With that out of the way, let’s review the top 5 tactics prosecutors use in trial:

5.  “Liar Liar Pants on Fire”

Proffering a defense in a criminal trial is extremely difficult.  If you think about it, it’s almost impossible to do without a prosecutor being able to accuse your client, his friends, family or anyone testifying on their behalf of being a liar.  It’s really a built-in, automatic rebuttal when someone takes the stand to say “my friend wasn’t drunk we he left the bar” in a DWI trial, or “I was with my husband the time you say he was sexually assaulting the accuser,” or  “my wife bought that scarf three weeks ago from your store… she wasn’t shoplifting.”

What many jurors don’t realize is this built-in tactic is the exact reason we have the right to remain silent.

4.  Spinning a Lack of Evidence, Neutral Evidence, or Evidence of Innocence into Evidence of Guilt For the Jury.

One of the more frustrating techniques I come upon is where a prosecutor infers evidence which obviously points to innocence actually points to guilt.

A common example in DWI cases is where the person looks good on the video… prosecutors frequently argue this is evidence the person has a high tolerance for alcohol abuse.  It’s possible in some cases this argument may be true.  Then again, what they’re really saying the accused person is just guilt regardless of the evidence.  If they look drunk — they’re drunk and if they look sober — they’re drunk.

Another common example is in cases where there is very little evidence and only a select few witnesses.  Some prosecutors will actually argue this is because the crime was committed with expertise.  Prosecutors will argue, “The Defendant chose the time, place, and witnesses to the crime.”  In other words… if there is no evidence it’s not because the Defendant may be innocent — but because the defendant is good at getting away with things.

This tactic is a recipe for erroneous convictions.  Read the facts of cases from inmates who get exonerated after decades and you’ll see a continual pattern of virtually all evidence being subjective conjecture or horribly flawed eyewitness testimony.  No evidence means no evidence.

What is more upsetting about this tactic is it is really prohibited by the Texas Rules of Criminal Procedure Rule 2.03 (b) which does not allow any officer of the court to “impair the presumption of innocence.”  When evidence of innocence is being spun into evidence of guilt — I’d say that provision is being broken.

3.  Feigned Fairness

Prosecutors are taught to cover concepts such as the presumption of innocence, the defendant’s right not to testify, and the burden of proof being very high in their arguments and jury selection presentations.  The cursory discussion has the effect of making them seem even-handed to the jurors.

Like a politician who makes a broad statement he’s for one thing… then promptly does another, a prosecutor talks about the defendant’s important rights briefly and then pays them lip service for the rest of the trial.

Experience has taught me brushing over a defendant’s constitutional rights without any context or explanation is a sure way to have a jury ignore them.

2.  Shifting the Burden to the Defendant

It’s virtually impossible for a Defendant to prove they’re innocent of an accusation.  Think of how impossible it would be to prove you’re innocent of making a bad lane change if you were accused of it.  You’d have no video evidence or other documentary evidence supporting your case at all.  You’d only have your word — or the word of a passenger in your car.  That defense is a loser (see #5 above, Liar Liar…).

Prosecutors routinely shift the burden, though, in very tacit ways.  One common method is during jury selection prosecutors will explain Defendant has a right to discovery under the Texas Penal Code and the prosecutor has no such right.  Another is the Defendant has equal subpoena power.

Both statements are true and leave an impression of rules that are even or even turn the district attorney’s office into being victims of an unfair process.

These impressions are highly misleading, however.  First — the accused gets information because (as explained above), the prosecution is charged with proving an affirmative action.  Defendant is not required to prove a negative.  Second, Defendant’s “equal subpoena power” is extremely hollow considering the police and government have virtually unlimited investigatory resources compared with virtually none of the defense.

1.  Lowering the Burden of Proof

This is easily the No. 1 tactic prosecutors use to secure convictions.  Prosecutors are trained to lower the burden on themselves and many of them don’t even appreciate this is what they’re doing.

The burden of proof in a criminal case is “beyond a reasonable doubt.”  This phrase used to be defined for jurors as, “..the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  In 2000, the Texas Court of Criminal Appeals did away with this rule and allowed jurors to define it how they chose fit.

An extremely common example used by prosecutors — especially in DWI cases — is a likening the standard of proof beyond a reasonable doubt to an incomplete puzzle where you can still make out the over-all image (usually of a whale or a handgun).  The prosecutor explains there may be missing pieces, the jurors still don’t have a “reasonable doubt” as to the over-all picture.

Jurors find this explanation simple and highly persuasive but the puzzle is problematic.  It’s flawed assumption is proving a crime is a general proposition… instead of a specific proposition with fine details.  It lowers the burden of proof because you could remove over half the pieces to a picture of a giant whale and still be certain it’s a whale.  But what if instead of a puzzle a case is more like a math equation where we’re missing just one or two key numbers?  The remaining pieces of the equation become worthless because we can’t be sure of the outcome or how to get there.

*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 case you should contact an attorney directly.


Simple Thoughts on the Reliability of the Breath Test

September 12, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Texas uses the Intoxylizer 5000 as its breath test machine.  Rather than discuss it in confusing and lengthy scientific concepts (which we’re happy to do in person), let’s discuss in general terms some if the problems associated with the machine.

Think of it as a scale in your bathroom that says you weigh anywhere from 50 to 170 lbs.  Not very helpful, is it?  This is for several compounding reasons.  First is the machine’s technology was created when the Atari video games were popular and Texas simply hasn’t found it cost-effective to upgrade.  Second is the machine piles assumption after assumption about the test-taker which may or may-not be true.

Also the machine – like any other mousetrap — can completely whiff on occasion.  The amount of ethyl alcohol it would take to score a false positive could fit on the tip of a pen as just one example.  The machine can be set off by GERD or gastro-intestinal reflux disease, can respond to environmental products used in the workplace, and has problems distinguishing diabetic shock from intoxication.

Again, we’re happy to discuss the science behind the Breath test in person… but understand just because the machine said it doesn’t mean it’s accurate!  It never hurts to scrutinize any test result.


The Top 6 Things You Should Know Before Pleading Guilty

September 7, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Pleading guilty may be the best option in a case – but it should never be the first option.  The decision to plead guilty is often not much different than the decision to get a permanent tattoo everyone can see.  You should fully know and understand the consequences and alternatives before making this choice.

1.  What does it mean if I Plead Not Guilty?

It means you are exercising your right to a trial by judge or jury.  Every person has the right to a trial and every person has the right to plead “Not Guilty” to a criminal charge regardless of whether they committed the crime alleged.  There is nothing dishonest or immoral about pleading “Not Guilty” because your claim is essentially the state or government is unable to prove your case beyond all reasonable doubt.  Some backwards countries require you to prove your innocence — but the U.S. isn’t one of them.  By asking the State to bring it’s proof against you — you are keeping your government accountable to the people.

2.  What Rights am I Giving Up?

The framer’s of our constitution really knew what they were doing.  They gave us several extremely powerful rights — which in and of themselves could actually prevent you from being convicted regardless if you are “guilty as sin” or are completely innocent.  My list is only partial, but here are some of the rights you’ll waive in a guilty plea:

  • The right to a jury trial, the value of which speaks for itself;
  • The right to testify in your own defense and be heard — or the opposite — to remain silent so you don’t have to be exposed to harassing or abusive questions (known in the legal profession as “do you still beat your wife” questions) from the prosecutor.
  • You’re waiving arguably your most important right — the right to cross examine a witness.  Cross examination is a powerful way to break down the State’s case and show the jury or judge the full truth of an accuser’s account.
  • You’d typically (but not always) waive your right to appeal which means barring some remarkable unknown circumstances — the case will be final once the judge accepts the plea.

3.  What Are the Consequences of My Guilty Plea?

Know what you’re signing up for.  Understand the differences between deferred adjudication and a conviction and ask your lawyer about how it impacts your ability to expunge (clear) or hide (non-disclose) your record.  Understand the requirements you’re agreeing to if you’re accepting probation — and the punishments if you fall short.  Ask about other collateral consequences particular to the type of charge you’re pleading guilty to… will it affect your right to vote?  To own a firearm?  Could it cost you your job, a professional license or the ability to get a professional license?  If you’re agreeing to go to jail or prison, know the parole guidelines first.

4.  Can I Actually be Acquitted at Trial?

I tell juries all the time the truth that, “people are acquitted in courthouses all around America every single day.”  Your lawyer should be able to discuss the strengths and weaknesses of each case with you.  Again, the prosecution bears the burden of proof beyond all reasonable doubt which never shifts back to you.  Not only that, but you are presumed innocent.   Just because some facts may look bad in your case doesn’t mean you’ll lose.  Before you make the decision to plead guilty, you should know what may or may not happen at trial.

5.  Will the Punishment be Worse if I Take the Case to Trial?

People often assume the prosecutor’s plea offer is a better shake than the judge or jury will give in the event you’re convicted after a trial.  Often prosecutors, in making plea offers, simply don’t have their fingers on the pulse of the community.  Merely because the individual prosecutor may be judgmental doesn’t mean a judge or jury will agree with them.  A prosecutor asking to jail a 42 year homemaker with 3 kids for a DWI after a night of drinks with girlfriends may find the jury is angry with him for what could be seen as a mean suggestion.

6.  Won’t Fighting the Case Make the Prosecutor or Judge Mad?

Maybe.  But so what?

If you’re charged with a crime, you have to be far more concerned with how the case will impact you 10, 20, or 30 years down the road… long after both the judge or prosecutor have forgotten your name.  Besides, the vast majority of judges I’ve been around actually appreciate strong advocacy from defense lawyers and few judges (or juries) give in to a frustrated prosecutor upset about having to prove a case.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice and for legal advice about any situation you should consult with an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship an communications sent through this forum are not privileged nor confidential.