Getting Out of Jail in Plano

August 13, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(214) 724-7065 (24-hour jail release)

What is needed is generally called a “writ bond.”  A writ bond is a document filed by a licensed attorney with the county triggering a cash bond.

In English, this means that you can get a loved one out of jail without having for them to wait on a magistrate — a process which by law may take up to 24 hours.  The most common application are DWI cases from Plano, Frisco or Allen.

Legally here’s what is happening:  An attorney is filing a “writ of habeas corpus” on behalf of his client (the person in jail).  The application asks that bond be set.  The bond is paid (presumably by a friend or family member).  Collin County requires the person paying to sign an acknowledgment that the money received is the money of the inmate — and will be refunded to the inmate at the conclusion of the case.

For a writ bond, the inmate is both the principal and the surety on the bond.  The person released must report back to court.  If the arrested person fails to go to court and has his bond forfeited, then a warrant is issued and the County can institute proceeding to keep the bond money originally paid.

This process shouldn’t be confused with a bail bond.  That is where a bondsman posts the bond with the county on the inmate’s behalf.  This gives the bondsman incentive to make sure the released person goes to Court because if they don’t, they’re liable to the county for the bond fronted.

*Jeremy F. Rosenthal is an attorney licensed to practice 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, please consult an attorney.

 


How Can I Defend Someone If I Know They’re Guilty?

June 18, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

If you practice criminal defense you are invariably asked questions by people who simply don’t understand what it is you do.  The questions don’t bother me.  We are all naturally programmed to think in terms of good and evil.  We all view ourselves on the side of good and can’t understand how anyone can cross the imaginary boundary we’ve established in our mind.

1.  How Can You Possibly Defend Someone You Know is Guilty?

When I defend a guilty person, I defend everyone.  If I can make it difficult for a guilty person to be treated unfairly then I’m making it extremely difficult for an innocent person to be treated unfairly.

Besides, not everyone is guilty.

2.  What This Person Did Was Awful.  How Can You Defend Him?

I don’t defend crime or criminal acts.  I defend human beings and their rights.

I defend people whose imperfection is making bad choices and/or hurting people from people whose imperfection is being judgmental.

Another fun way I respond to either of these questions is, “Well let’s just lop their hand off like they do in other parts of the world.”

That usually drives the point home.

*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 situation you should contact 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.


What “No Refusal” Really Means

December 7, 2012

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

By now we’re all familiar with police press releases telling us a certain weekend is a “no refusal weekend” or that some police agencies have “no refusal policies” in place.  Many people in the general public logically interpret the statement to mean they no longer have the right to refuse a breath or blood test.  Unfortunately the term is a confusing and somewhat misleading tag line and today I’m discussing what it means in layman’s terms.

You Have the Right to Refuse Breath or Blood Testing Under Texas Law

In Texas we have the “implied consent rule” under Texas Transportation Code 724.011(a).  This rule states a person driving in Texas has… by the mere fact of having driven in Texas and being suspected of DWI… already consented to give a breath or blood test if asked.  

But, Tex.Trans.C. 724.013 is unambiguous and says in relevant part “…a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”  In addition, Courts have affirmed, “a person retains an absolute right to refuse a test… That refusal must be strictly honored. McCambridge v. State, 712 S.W.2d 499, 504 n.16 (Tex. Crim. App. 1986) and Turpin v. State, 606 S.W.2d 907, 913-14 (Tex. Crim. App. 1980).  Texas Courts have mildly retreated some of the language in the cases above by stating the right to refuse is a “physical right” but not a “legal right.”

Taking Your Blood Even if You Refuse

“No Refusal” refers to the practice of seeking a search warrant from a judge to draw blood against a person’s will where that person has refused a breath or blood test.  Prosecutors argue 724.013 essentially has no meaning and Chapter 18 of the Penal Code allows for the drawing of blood from the human body via search warrants the same way a search warrant could allow police to search a drug-dealer’s house.  Courts have done little thus far to stand in their way.  

Police agencies, hospitals, and even some judges have made special efforts to coordinate and streamline the process.  Judges give the agencies private fax numbers receive search warrants (often fill-in-the-blank forms from the officers) via facsimile and sign them.  This warrant is a Court Order the person arrested must submit to the blood testing — even against their will.

Why Citizens Find it Troubling

I’ve been pleasantly surprised by juror’s reactions to involuntary blood draws.  Even pro-police jurors jaws drop during jury selection when the learn police can literally physically assault someone under the color of law to solve what is normally a misdemeanor.  Many jurors wonder if this could happen to their loved ones who might be terrified of needles.  The backlash is enough so many prosecutors will actually quiz potential jurors on their feelings about the topic to possibly eliminate them from the panel if they oppose the practice enough.

Why Defense Lawyers Find it Troubling

First, the practice blurs the lines between law enforcement and the judiciary.  It’s not uncommon or wrong in any way for police to present a search warrant to a neutral-detached magistrate stating under oath probable cause exists to invade a persons rights for the seizure of evidence of a crime.  The mental image we have is from the movies where police are knocking on the Judge’s door at 2 a.m. and apologizing profusely for waking the judge.  

But this isn’t what’s happening.  Police are filling out cookie-cutter forms and faxing them to Judges assembly-line style so as to treat citizens protections against unreasonable searches and seizures as a technicality easily over-ridden.  We’re lucky in Collin County not to have any judge who I would remotely characterize as a “rubber-stamp” but knowing the practice growing around the State is certainly worry-some.

Second, a handful of codes and statutes are bent, ignored, or rationalized away by police to effectuate the “no refusal” practice.  Tex.Trans.C. 724.013 prohibiting police from taking a specimen against someone’s will is an obvious one, but almost just as troubling is police are required by law under Tex.Code.Crim.P. 14.06 to take an arrested person before a magistrate “without unnecessary delay” for the purpose of setting bond and reviewing important rights as well as information about the nature of the charges.

Instead of taking an accused under 14.06 without unnecessary delay as police are required to do by law when arresting someone… they contact a magistrate or judge for their own investigation wholly ignoring the accused’s needs (actually rights) to have access to the same magistrate.

*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 may have you should consult 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.