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Rosenthal & Wadas Attorneys Named to the 2017 Texas Super Lawyers List

RosenthalWadas_logo

We are pleased to announce that two attorneys from Rosenthal & Wadas have been named 2017 Texas Super Lawyers by their peers for outstanding work in Criminal law. This is an exclusive list, recognizing no more than five percent of attorneys in Texas. It is with great pride that these select attorneys have been recognized by their peers for outstanding work in Criminal law.

Derk Wadas was previously selected a Super Lawyer in the Criminal Defense field for the fourth year in a row. He is Board Certified in Criminal Law by the Board of Legal Specialization and is a former Collin County prosecutor.

Bo Kalabus is celebrating 6 years on the Super Lawyers list. He has been practicing law for seventeen years, focusing solely on criminal defense since 2010.

Lawyers are chosen as Texas “Super Lawyers” by a selection process that involves peer nominations, evaluations, and independent research. Over 55,000 attorneys who have been practicing for at least five years are surveyed across Texas. More than 70 different legal practice areas are represented by lawyers recognized by Super Lawyers®.

About Rosenthal & Wadas

Rosenthal & Wadas is Collin County’s largest criminal defense firm and is the only firm in Collin County with two partners board certified in criminal law by the Texas Board of Legal Specialization. Both partners are former state criminal prosecutors and head a firm of seven lawyers who have dedicated their practice to the defense of individuals charged with criminal offenses. Rosenthal & Wadas stands by your side from the beginning to the end of your case and provides you with the legal defense and guidance you deserve.

For more information, visit RWLawyers.org or call 972-369-0577.

Posted in Uncategorized

If you are Convicted of Certain Offenses, you are Required to Register as a Sex Offender

Sex Offender Blog Post Image

Under Megan’s Law, a subsection of the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994, all 50 states are required to maintain sex offender registries of individuals convicted of sex crimes. Each state creates and maintains its own guidelines for its registry, including which offenses carry registration as a requirement for convicted individuals and whether the state maintains a central registry or if counties and municipalities maintain their own registries.

Like other states, Texas has a public sex offender registry with which individuals convicted of certain offenses must register. Living as a registered sex offender has numerous disadvantages, such as being barred from living in certain areas, holding certain jobs, and the social stigma that can accompany this status. If you are facing any type of sex crime charge, working with a competent criminal defense lawyer can be the key to having your charge lowered or even dropped altogether, which can keep you from having to register as a sex offender and other penalties for conviction.

Sex Offenses that Require Registration

Certain offenses require convicted individuals to register for the rest of their lives. These include, but are not limited to, the following:

  • Sexual assault;
  • Continuous sexual abuse of children;
  • Possession or promotion of child pornography;
  • Sexual performance by a child;
  • Compelling prostitution;
  • Human trafficking;
  • Aggravated kidnapping with the intent to sexually violate or abuse the victim; and
  • Any other conviction under the law of another state or country that is substantially similar to one of Texas’ sex crime laws.

Other offenses only require convicted individuals to register for 10 years. These offenses include:

  • Online solicitation of a minor;
  • Prostitution; and
  • Unlawful restraint or kidnapping if the victim was under the age of 17.

Registration as a Sex Offender in Texas

Sex offenders must register with their local law enforcement authorities in any municipality where they intend to reside for longer than seven days. To register, an individual must provide the following information:

  • A color photograph;
  • His or her full name;
  • The individual’s current address;
  • The individual’s height, weight, hair color, eye color, shoe size, race, and gender;
  • The date of the individual’s conviction;
  • All of his or her aliases;
  • Whether he or she is employed, in school, or intends to maintain a full time job;
  • The individual’s phone numbers;
  • Whether the individual is on parole, under supervision, discharged, or released from juvenile probation;
  • The age of the individual’s victim;
  • The offense for which the individual was convicted or adjudicated; and
  • All of the individual’s established online aliases.

Requirements for Registered Sex Offenders in Texas

Individuals who are registered sex offenders in Texas face the following requirements:

  • All registered offenders must update their personal information, including their addresses, with the Texas Sex Offender Registration Program yearly. Moving without notifying the program of one’s new address is a felony;
  • Individuals who spend 48 hours or more in a municipality or county other than their home county or municipality three or more times per month must provide their information to local authorities when away from home;
  • Those under court supervision must have all proposed moves approved by their probation officers;
  • Those who complete probation or parole are not required to obtain permission to move, but must continue to register all address changes. The Department of Public Safety reserves the right to mail a postcard to all residents and businesses of a high-risk individual’s new neighborhood informing them of his or her presence and if the individual’s victim was under the age of 17, DPS notifies all local schools as well;
  • Landlords may discriminate against prospective tenants who are registered sex offenders; and
  • Offenders under court supervision are prohibited from participating in civic, athletic, and cultural programs for children age 17 and younger. Additionally, if such programs are conducted on or near schools or playgrounds, offenders are barred from participating.

Work with an Experienced Collin County Criminal Lawyer

If you are facing any type of criminal charge, whether it is for a sex crime or another type of offense, it is in your best interest to start working with an experienced Collin County sex crimes lawyer as soon as possible to develop an effective legal defense strategy for your case. Contact our team at Rosenthal & Wadas, PLLC today to schedule your free, confidential consultation with us in our office.

Posted in Federal Criminal Defense, Sex Crimes

Five reasons you need to hire a Criminal Defense Attorney if you are arrested on Labor Day Weekend

Arrested on Labor Day

Labor Day Weekend is usually a busy weekend, with time spent enjoying backyard barbeques, spending time at the lake or taking a road trip. If you happen to find yourself arrested over the holiday weekend, odds are you don’t know where to turn next. The best thing you can do is contact a Collin County criminal defense attorney right away.

Here are five reasons why you should hire an attorney if you are arrested over Labor Day weekend.

1. Getting released from Jail – Depending on the charge, an attorney can often quickly secure your release from jail with a writ bond. And with the legal holiday falling on a Monday, local courts may be running with minimal staff until the middle of the week. This means that if you are arrested over the weekend, you may not see a judge for 48 hours.

2. Begin Your Defense – The sooner you get in contact with an attorney, the sooner we can begin working on a plan to have the charges reduced or dismissed. One of the best ways to challenge the arrest is to begin formulating your defense as quickly as possible.

3. Know When to Keep Quiet – Do not discuss your case with anyone except your attorney of record. Police officers and investigators working for the prosecutor want you to talk to them to incriminate yourself. You must also remember this if you are using a jail pay-phone as these phone calls are recorded.

4. Cost-Effective Spending –The best way to handle a criminal charge is to hire a skilled attorney. While it may not seem fun spending money on a lawyer, it could help you avoid fines, the loss of your driver’s license and increased insurance premiums.

5. Rest Easy –It can be overwhelming trying to balance everything that comes with an arrest. An attorney can help give you peace of mind. We want you to get back to your normal routine while we do the heavy lifting on the legal side.

The attorneys at Rosenthal & Wadas will work with you to determine the correct defense strategy based on the facts pertaining to your case. Call our office to setup a free consultation and let us help you begin to get things back on the right track. 972-369-0577

Posted in Criminal Defense, DWI

New Texas Criminal Defense Laws That Will Go Into Effect Sept. 1

Texas Criminal Laws

Although new laws typically take effect when the new year starts, Texas residents will see some new laws coming their way later on this year—September 1, to be exact. The new Texas criminal laws cover various topics, including DWI convictions, cyberbullying, police brutality, texting, swords, drones, education and even voting. Read on to see which ones may affect you.

Second Chances for Non-Violent Offenders
Those convicted of non-violent crimes—such as misdemeanors—may get the opportunity to remove the crime from public view. This means that employers and citizens would not be able to view the conviction, although law enforcement would be able to if necessary.

In order to request this, the person would have to serve their sentence and pay any fines or restitution. They can then ask the court for an order of nondisclosure.

A first-time DWI offender may be able to get a second chance if they meet certain criteria. Their blood alcohol content must have been below 0.15 and they must not have any prior DWI offenses. They must not have hit a pedestrian or car with someone inside. The conviction must have resulted in community supervision (probation) as opposed to a jail sentence. In addition, they must fully pay court fines and either wait five years after their conviction or wait two years after a successful discharge from a community supervision if you had a Deep Lung Device (DLD) installed in your car as a condition of supervision before you apply. There are a lot of hoops to go through, but it would be worth it, especially for someone looking to find decent employment.

Texting While Driving Will Be Illegal
This is a big one for Texas motorists. Motorists will not be able to read, write or send text messages while the car is in motion. The car must be stopped. You are also not allowed to use your phone for accessing GPS or the stereo. The maximum fine for a first offense is $99.

Swords Can Be Carried in Public
This may seem like an odd law, but come September 1, Texas law will allow you to carry any knife longer than 5.5 inches—such as a machete or sword—in public. There are some restrictions, of course. The knife cannot be taken into a school, park, church, hospital, jail, bar or sporting event. In addition, a child under age 18 will not be allowed to carry one without adult supervision.

Don’t Fly Your Drone Near a Jail
This seems like another odd law, but it was passed for a reason. Many people carry drugs or weapons on drones to deliver to inmates. Therefore, flying them near correctional facilities is no longer allowed. Drones also cannot be flown near large sporting venues. You could be charged with a Class B misdemeanor, which could mean six months in jail and a $2,000 fine.

Attacking an Officer Will be Considered a Hate Crime
The Police Protection Act will go into effect in Texas on September 1, enhancing penalties for judges and police officers who are victims of assault. Threatening a police officer will be a state felony, which could mean two years in jail and a $10,000 fine. Assault of a police officer is a second-degree felony and could mean $10,000 and up to 20 years in prison. Bodily injury to a police officer is a first-degree felony, which could result in life in jail and a $10,000 fine.

Cyberbullying Will Be a Crime
Electronically harassing children under age 18 with an intent to harm themselves will be a Class A misdemeanor, punishable by one year in jail and a $4,000 fine. Courts will be able to find the identity of the bully and public schools will be required to report and intervene. Victims will also have the ability to obtain restraining orders and sue the parents of cyberbullies.

Protections for Good Samaritans
Good Samaritans who break into a vehicle to rescue a child, senior or disabled person trapped inside will no longer face civil liability. They are already protected against criminal charges—if they follow certain criteria, which includes calling 911 first and avoiding using unnecessary force. They must also believe the person is in imminent danger. This law will provide extra protections so the “hero” is not punished.

Work with an Experienced Collin County Criminal Defense Lawyer
If you have been charged with a crime in Texas, you need to give your case a fighting chance. An experienced Collin County criminal lawyer can evaluate your situation and help provide the best defenses possible. Contact our team at Rosenthal & Wadas, PLLC today to set up your free confidential consultation in our office.

Posted in Criminal Defense

Drug Paraphernalia Charges – You Could be Guilty Without Realizing It

Drug Syringe

If you are familiar with drug use and culture, you know that certain household objects double as items used for the storage, manufacture, or consumption of illegal drugs. These items are known as drug paraphernalia. Like the possession of illegal drugs, the possession of drug paraphernalia is a drug crime. But unlike illegal drugs, which only serve one purpose, items that may be deemed to be drug paraphernalia serve multiple purposes. Because of this, it is possible for an individual who is completely innocent of drug offenses to be charged with the possession of drug paraphernalia and even found guilty.

Any item used in conjunction with an illegal drug may be deemed to be a piece of drug paraphernalia. Examples of items that can count as drug paraphernalia include:

  • Glass, wooden, and metal pipes;
  • Elaborate smoking systems, such as water pipes and “bongs;”
  • Spoons;
  • Pill bottles;
  • Plastic baggies;
  • Lighters;
  • Needles;
  • Syringes;
  • Rolling papers;
  • Glass vials;
  • Razor blades;
  • Kitchen scales;
  • Cocaine freebase kits; and
  • Roach clips.

Proving a Drug Paraphernalia Charge

As you can see from the list above, many of the items that can lead to a drug paraphernalia charge have non-drug related uses as well. For example, an individual might use rolling papers or a pipe to smoke tobacco or a kitchen scale to weigh food portions. In order to find an individual guilty of the possession of drug paraphernalia, the court must prove beyond a reasonable doubt that the individual had the item specifically for use with illegal drugs and that the item was used to manufacture, transport, or consume illegal drugs.

To prove that an item is a piece of drug paraphernalia, the court may connect it to other evidence found with the item, such as pieces of related paraphernalia or the illegal drug itself. Testimony from witnesses, instructions for the item’s use, and how the item was presented and sold to the possessor can all be used to support a claim that an item is a piece of drug paraphernalia.

Penalties for a Drug Paraphernalia Possession Conviction

In Texas, possession of drug paraphernalia is a Class C misdemeanor. The penalty for this conviction under the Texas Controlled Substances Act is a fine of up to $500. Selling drug paraphernalia is a Class A misdemeanor, the penalties for which are:

  • p to $4,000 in fines; and
  • Up to one year in prison.

Selling drug paraphernalia to a minor and committing repeat paraphernalia sales offenses are both felony-level charges. Individuals convicted of a felony drug paraphernalia sale charge can face the following penalties:

  • For a repeat offense, a minimum of 90 days in jail; and
  • For selling drug paraphernalia to a minor, a minimum of 180 days in jail and a maximum of two years in prison as well as a fine of up to $10,000.

Why Do I Need a Defense Lawyer to Handle my Drug Paraphernalia Charge?

A charge for possession of drug paraphernalia is not the same as a conviction of possession of drug paraphernalia. If you are charged with this offense, an experienced lawyer can make use of the available evidence and lack thereof to demonstrate your innocence to the court.

As we discussed above, many items that can be considered to be drug paraphernalia also have legal uses. Your legal right to own a certain item, such as a glass pipe for smoking tobacco, can be defended by showing that you use the item for legal purposes. If a pill bottle leads to an accusation of storing pills like Oxycontin, your prescription for the drug can show that you are legally permitted to possess and consume that substance.

A drug paraphernalia charge is not as simple as it might initially seem. There are many ways you can unknowingly incriminate yourself through what you say to law enforcement or the court. A lawyer has experience defending individuals facing this type of charge and can coach you through these interactions to potentially have your charge reduced or dismissed.

Work with an Experienced Collin County Drug Crimes Lawyer

To give your case the best possible chance of resulting in a favorable ruling, you need to work with an experienced Collin County drug offense attorney. Contact our team at Rosenthal & Wadas, PLLC today to set up your free confidential consultation in our office to learn more about what you can expect from the criminal justice process and how we can help you.

Posted in Drug Crimes

What is a Lesser Included Offense, and Why is it Important?

Judge Gavel

Lesser included offense laws can play a significant role for the defense in a Texas criminal case. However, they can also be used by the prosecuting attorney to secure an advantage at trial. If you’ve been charged with a crime, the key to success with lesser included offenses is proper strategy, which requires an in-depth, meticulous understanding of how the law works. An experienced Collin County lawyer can tell you more about the application of these laws to your unique situation, but it’s helpful to review the basics and recognize the potential advantages.

Lesser Included Offense Under Texas Law

According to the Texas Code of Criminal Procedure, a lesser included offense is one that:

  • Can be proved by the same facts, or less than all of the same facts, that would prove the crime actually charged by the prosecution;
  • Is only different from the crime charged, in that it involves a less serious injury or risk of injury to the person, property, or public interest;
  • Is different from the crime charged, in that it involves a less blameworthy mental state of mind; OR,
  • Bears the characteristics of an attempt to commit the crime charged or an otherwise included crime.

Example

A common scenario used to describe the concept of lesser included offenses is the crime of strangulation, which falls under Assaultive Offenses in the Texas Penal Code. Assault is knowingly causing or threatening to cause bodily injury to another person, and it’s a Class A Misdemeanor.

Choking someone is a type of assault; however, there’s the added element that it involves stopping the airflow of another person. The assault crime of strangulation is elevated to a Third-Degree Felony.

Based upon this example, assault would be a lesser included offense to strangulation. It can be proved by less than all of the same facts because, for assault, it’s not necessary to establish that the defendant stopped the airflow of another person.

Implications of a Lesser Included Offense at Trial

The Texas statute on lesser included offenses can be part of an effective strategy in defending your rights in a criminal case. Ultimately, your goal is to get the option of a lesser included offense before the jury when they go to deliberate.

  • Not a Separate Charge: When a lesser included offense is an option in your case, it will not come as a separate charge. Only a judge can order the jury to consider whether to convict you for a crime that’s not part of the official charges against you, and he or she would do so through jury instructions.
  • How Jury Instructions Work in Texas: When the prosecutor has presented the evidence against you and you have presented all facts and arguments for your defense, the jury will deliberate about the case. However, they receive instructions from the judge before heading off to discuss your guilt or innocence, such as the essential elements of the crime.

Prosecuting and defense attorneys submit their requests for jury instructions; if they’re approved by the judge, the jury is required to adhere to them when making a decision.

  • Getting the Lesser Included Offense Before the Jury: A specific instruction on a lesser included offense is necessary to ensure the jury considers this as an option; otherwise, the jury will only consider the crime that’s described in the official charges.

In general, a defendant has the right to a jury instruction on lesser included offenses if the evidence would allow the jury to reasonably find him or her guilty of the lesser offense – but NOT guilty of the greater offense.

Texas courts have held that anything more than a “scintilla” of evidence may be sufficient to include a jury instruction on lesser included offenses. There may be grounds for appeal if a judge declines to include the instruction, because the refusal to allow the jury to consider a lesser offense harms the defendant’s case.

Consult with a Knowledgeable Collin County Criminal Defense Lawyer About Your Defense

Ultimately, you should consult with a lawyer to determine whether or not lesser included offenses would give you an advantage in your defense. There can be advantages, such as the impact on your criminal record or in negotiations with a prosecuting attorney. However, there are drawbacks if you expected the jury to come back with a “not guilty” verdict – but they still find you “guilty” on a lesser included offense. An experienced criminal defense attorney can review the details of your case and explain your options, allowing you to make informed decisions about the strategy in your case.

For more information on how lesser included offenses work and other aspects of your case, please contact the criminal defense lawyers at Rosenthal & Wadas, PLLC in Collin County, Texas. We can set up a case assessment to discuss your matter in more detail.

Posted in Federal Criminal Defense

What is a Motion to Revoke?

Law Books

If you were convicted of a crime in Texas or pled guilty to charges against you, it’s possible that a judge will grant you “community supervision.” This term is synonymous with the legal status commonly known as being on probation. The arrangement typically involves a series of programs and requirements that you must follow for a designated period of time, depending on the circumstances of your case. If you violate the terms of your probation, you may face a motion to revoke, which has serious implications for your life and freedoms. While you should always rely upon a Collin County criminal defense lawyer to assist with the specifics, some general information may be useful.

Overview of Probation

The Texas Code of Criminal Procedure provides for community supervision in criminal cases, which may be imposed by the court for a specified period of time. An order of probation defers criminal proceedings or suspends imposition of a sentence, so long as you comply with the specified conditions.

If you breach the terms of your probation, your conduct may trigger the motion to revoke probation process. When the officer in charge of your case determines that you’ve violated the terms of your probation, he or she may attempt to resolve the matter without court involvement.

However, it’s likely that the officer will take the matter directly to the District Attorney (DA), which triggers the motion to revoke probation process. The DA files the motion with the court where the underlying crime occurred, asking for a hearing date to be set to determine whether you’ve violated the terms of your probation. The request will also include a warrant for your arrest.

Motion to Revoke Probation Hearing

The proceedings for a probation violation are similar to a trial. You will hear the DA’s evidence regarding the alleged violation and you do have the opportunity to defend yourself against the charges. You also have the right to an attorney.

Still, there are key differences in a motion to revoke probation hearing:

  • The matter will not address the issues involved with the underlying crime. You won’t be allowed to present new evidence, re-argue the facts, or request a different sentence.
  • Unlike a criminal trial, the standard of proof is preponderance of the evidence. In other words, the DA will have to prove that it’s more likely than not that your conduct is a violation of probation.
  • You do not have the right to a jury to decide on the motion to revoke probation.

If the DA is successful in proving, by a preponderance of the evidence, that you violated the terms of your community supervision, the judge has discretion to determine the outcome. It’s possible that he or she will not revoke your probation. You may be allowed to continue on probation, it may be extended, or there may be additional conditions.

On the other hand, the judge may grant the DA’s motion and revoke your probation. You will face the maximum sentence that was suspended when you were originally convicted or pled guilty in the underlying crime.

How to Fight a Motion to Revoke

You do have options when faced with a motion to revoke probation, but the first step is to retain a criminal defense lawyer to represent your interests. An attorney with extensive experience in probation violation cases can assist you with:

  • Presenting Defenses: Even with a lower standard of proof in motion to revoke proceedings, you still have the opportunity to present defenses. There may be flaws in the DA’s case, or there may be holes in the story of a witness testifying against you. A lawyer will attack these weaknesses to fight the allegations.
  • Potential for Agreement: In some cases, you may be able to reach an agreement with the DA. An attorney can negotiate on your behalf to extend the probation term, order a fine, require completion of counseling or other programs, or other possible arrangements. If successful, you can remain out of prison and avoid the harsh penalties of a probation revocation.

Trust an Experienced McKinney Criminal Defense Attorney

As you can see, Texas law takes probation violations very seriously. If you breach the terms of your community supervision, you face serious consequences, including incarceration. When the stakes are high, you need a skilled criminal defense lawyer to represent your interests in a motion to revoke probation proceeding. The probation violation attorneys at Rosenthal & Wadas, PLLC have the in-depth knowledge of Texas criminal laws to fight for your rights and obtain a positive outcome. Please contact our office with questions or to set up a case evaluation.

Posted in Criminal Defense

Don’t let July 4th Fireworks Cloud Your Judgement

4th of July

We are all proud to be Americans and want to celebrate the July 4th holiday. But as you celebrate, be aware that the police will be watching you as leave the firework show. If your Independence Day plans include alcohol, make sure you don’t get behind the wheel of a car, truck, boat, motorcycle, or any other kind of motor vehicle. Law enforcement will be on the lookout for drunk drivers to keep our roadways safe.

A DWI is a serious crime in Collin County that could result in jail time, fines, and a suspension of driving privileges, which could have a huge impact on your family obligations and employment situation. With so much at stake, it is important to involve an attorney as soon as possible after an arrest.

Remember, even buzzed driving is drunk driving, and is not worth the risk to yourself and to others. We hope you don’t have to call us, but if your Fourth of July involves a DWI arrest, know that we are here to help. Widely respected and trusted throughout Collin County for DWI defense, you can count on us to defend your driving privileges and help you get back on track.

At Rosenthal & Wadas, we are dedicated to helping people resolve their sensitive legal issues, get through challenging times and move forward into a brighter future. To discuss your case and best defense options for proceeding, call us to set up a free consultation at 972-369-0577.

Posted in DWI

What Is an Administrative License Revocation (ALR) Hearing?

Driving While Intoxicated

It is something that happens in Collin County every day: A police officer pulls you over on suspicion of a DWI. The officer asks you to take a breath or blood test to confirm her suspicion. You refuse and are told your driver’s license will be suspended. What do you do next?

Implied Consent & Your Rights Under Texas Law

Texas has an “implied consent” law with respect to blood and breath tests. This means that by applying for and receiving a driver’s license from the State, you are presumed to consent to any subsequent sobriety tests requested by law enforcement. In practice, the Constitution forbids the police from conducting a search without your consent or a warrant, so you are still free to decline a blood or breath test.

But if you refuse–or if you agree and fail the test–Texas can automatically suspend your driver’s license for a period ranging from 90 days to 2 years. This suspension operates independently of any criminal DWI charges you may face. So even if prosecutors decide to prosecute you–or you are charged and later acquitted–you still have to deal with a potential license suspension.

Asking for a Hearing Will Delay Your Suspension

Once you refuse or fail a sobriety test, the arresting officer will generally serve you with a notice of license suspension. At this point your suspension has not taken effect. The officer will take your license, however, and issue you a temporary driving permit.

You have 15 days from the date of the suspension notice to request an administrative hearing from the Texas Department of Public Safety. If you do not act within this 15-day period, your suspension will become final on the 40th day after the notice was served, i.e. 40 days after you were arrested for DWI. But if you ask for a hearing in a timely manner, your suspension cannot begin until DPS has conducted a hearing an administrative law judge (ALJ) issues a ruling.

This often takes more time than you might think. By law the DPS can take up to 120 days to schedule a hearing. This means that you may be able to keep driving for four months (or more) while the ALJ considers your appeal. And even if the ALJ rules against you, that decision can be appealed, during which time the suspension still does not take effect.

At the hearing itself, you have the right to call and question the officer who arrested you. Since this is not a criminal trial, there is no prosecutor to prepare or cross-examine the officer. You can also challenge any other evidence used against you.

But keep in mind that to suspend your license, the state also does not have to prove you guilty beyond a reasonable doubt, as it would in a criminal DWI case. Instead, the ALJ only needs to find the officer had “probable cause” to arrest you, and that you refused or failed a sobriety test.

Fighting For Your Driving Rights in Collin County

One final thing: Even if you do not get your license back following an ALR hearing, you may still be eligible for an occupational driver’s license, which allows you limited driving privileges for work, school, or essential household duties. An experienced McKinney criminal defense attorney can help you with this or any other legal matter related to a driver’s license suspension. Contact the offices of Rosenthal & Wadas, PLLC today to speak with one of our Collin County criminal defense attorneys today.

Posted in Uncategorized

When Is “Sexting” a Crime in Texas?

Sexting

As every Collin County parent knows, your teenager communicates with their friends primarily by text message. Texting allows people to stay in touch constantly and quickly exchange personal messages. But remember, texting is not entirely private–and anything your child sends or receives over a communications network may be grounds for criminal prosecution, especially if it involves “sexting.”

What Is “Sexting”?

Sexting is a popular term for sending sexually explicit messages, photographs, or other images via a mobile phone. According to a survey published by DoSomething.org, a nonprofit organization that encourages youth activism, about 40 percent of teenagers in the U.S. “have posted or sent sexually suggestive messages” to other people. The majority of teen sexting–about 70 percent–do so with their girlfriend or boyfriend.

Despite its popularity, some forms of teenage sexting are illegal in Texas. The Texas Penal Code prohibits a minor–someone under the age of 18–from “intentionally or knowingly” using any “electronic means” to send “visual material depicting a minor” engaging in “sexual conduct” to another minor. The minor depicted can be the sender, i.e. sending a naked selfie of herself.

It is also a criminal offense to possess any visual material depicting a minor engaged in sexual conduct if the possessor produced said material or knows another minor who did. In other words, if teenager A sends a naked selfie to teenager B, both are considered in violation of the statute.

Normally, violation of the Texas “sexting” law is a Class C misdemeanor, punishable by a fine of no more than $500 and no jail time. However, if a minor uses sexting to “annoy, alarm, abuse, torment, embarrass, or offend another,” or has a prior sexting conviction, the charge can be elevated to a Class B misdemeanor, which carries a maximum penalty of 180 days in jail.

What Defenses Are Available to Teen Sexting Charges?

So is it really a crime for your teenager daughter to send a provocative picture of herself to her boyfriend? Not necessarily. There is an “affirmative defense” available in such circumstances provided the following conditions are met:

  • The minor only sent a picture of himself or herself to their respective partner;
  • The minor is in a “dating relationship” with the other person; and
  • There is no more than a two-year age difference between the minor and the other person.

It is also a defense for someone charged with receiving an illegal “sext” to demonstrate that they destroyed the offending “within a reasonable amount of time” after receiving it.

Do You Need a Collin County Criminal Defense Attorney?

It may sound silly to you that the State of Texas regulates teenage sexting. But this is no joking matter. If your teenager is convicted, even of a Class C misdemeanor, that becomes a permanent part of their criminal record. If the police have charged your teen with illegal sexting or other sex crimes in Texas, you need to contact a qualified Collin County sex crimes lawyer right away. Contact the offices of Rosenthal & Wadas, PLLC, if you need to speak with a Collin County criminal defense attorney today.

Posted in Federal Criminal Defense, Sex Crimes

Frequently Asked Question's

Assault Family Violence

1. What’s the difference between “domestic violence” and “family violence”?

Not much. “Domestic violence” commonly refers to violence between adults who are married, but “family violence” as defined in the Texas Family Code is broader and includes individuals who are:
  • Related by blood or marriage
  • Current and/or former spouses
  • Parents of the same child
  • Foster parents and children
It doesn’t matter for the above groups whether they live together or not. But the definition also includes:
  • Roommates
  • Individuals who are or were in a dating relationship

2. What are the different kinds of charges for family violence cases?

Several different offenses can fall under the “family violence banner,” but the most common cases are:
  • Assault (offensive touching, sometimes a reduction from a higher charge) – Class C Misdemeanor, $0 to $500 fine
  • Assault Family Violence – Class A Misdemeanor, 0 to 365 days jail and/or up to $4,000 fine
  • Assault Family Violence with prior FV conviction – 3rd and/or up to $10,000 fine
  • Continuous Family Violence (2 or more incidents alleged in one year) – 3rd to 10 years prison and/or up to $10,000 fine
  • Aggravated Assault causing Serious Bodily Injury with Deadly Weapon with Family Violence
  • 1st Degree Felony, 5 to 99 years or life in prison and/or up to $10,000 fine

3. Does it matter if it was a punch or “just a push”?

Yes and no. Bodily injury means any “physical pain, illness, or any impairment of physical condition.” It can be as serious as a stab or gunshot wound, or as simple as pulling someone’s hair. The issue is “did it hurt?” or “did it cause pain?” Some felony offenses allege “serious bodily injury,” meaning “injury that creates a substantial risk of death, serious permanent disfigurement, or [extended] loss or impairment of the function of” part of the body. The more serious the injury, the higher level the offense will be charged. And if the officers aren’t sure, they will usually err on the side of charging the higher offense.

4. What if I’ve been convicted of a case with a finding of Family Violence case before?

If you’ve already been convicted once before of a case with a finding of family violence, then the second arrest will be charged as a 3rd Degree Felony. A 3rd Degree Felony is punishable by 2 to 10 years in prison and/or a fine of up to $10,000. If the State can’t prove the enhancement (the prior case), they may still prosecute the case as a lower offense, usually a Class Assault Family Violence Misdemeanor.

5. I was issued an Emergency Protective Order. What does that mean?

An EPO can be issued on request from a police officer, an alleged “victim”, a guardian, or an attorney for the State. It may require you to not commit family violence or assault, communicate in a harassing or threatening manner, or go near a particular residence. An EPO can be effective for anywhere from 31 to 91 days, and it can be “replaced” upon request by a complainant with a standard Protective Order.

6. What happens if the complaining party doesn’t want to prosecute?

If the person who is alleged as the “victim” doesn’t want to prosecute, then he or she can file an Affidavit of Non-Prosecution with the District Attorney’s office. This can be done through an attorney or, sometimes, DA’s offices have their own protocol. This does not mean the case will dismissed – if the DAs feels they should go forward with the case or even if they can prove it without his or her testimony, they may still prosecute the case. But filing an ANP doesn’t hurt.

7. Can I still own a gun once if I plead guilty to Assault Family Violence?

No. If you are convicted of a Family Violence offense, like Assault Family Violence, you forfeit your rights to ever possess or transport a firearm or ammunition under federal law. If you violate the law, you will be subject to penalties under federal – not state – law.

Drug Offenses

1. What’s the difference between “possession” and “distribute” or “manufacture”?

“Possession” is the basic charge for any drug offense, whether it is marijuana or methamphetamine.  Proving possession requires a showing of “actual care, custody, control, or management.” To “distribute,” a person must deliver a drug in some way other than “administering or dispensing” it. But “manufacture” is the broadest definition of all, including the creation and altering of any drug (other than marijuana), by chemical synthesis and/or extracting natural substances. It can also include the packaging and labeling of a drug.

2. What’s a “penalty group” and how does it affect how I’m charged?

The legislature has divided controlled substances into 4 penalty groups, and each one has its own punishment range, depending on whether the offense is possession or manufacture and distribution, the amount of the substance, and generally based on the dangerousness of the drug itself. Some common drugs and their associated penalty groups are:
  • PG 1 – Methamphetamine, Cocaine, Heroin, Hydrocodone (over 300 mg)
  • PG 2 – Ecstasy, PCP
  • PG 3 -  Valium, Xanax, Ritalin, Hydrocodone (under 300 mg)
  • PG 4 – Morphine, Buprenorphine

3. How will the amount affect how I’m charged?

Charges are divided up by the amount involved, based on the penalty group. For example,  marijuana possession is charged as:
  • Less than 2 oz – class B misdemeanor
  • 2 to 4 oz – class A misdemeanor
  • 4 oz to 5 lbs – 3rd degree felony
  • 5 lbs to 2000 lbs – 2nd degree felony
  • Over 2000 lbs – 1st degree felony
For Penalty Groups 1 and 2 –
  • Less than 1 gr – state jail felony
  • 1 to 4 grams – 3rd degree felony
  • 4 to 200 grams (or 4 to 400 grams for PG2) – 2nd degree felony
  • 200 or more grams (or over 400 grams for PG2) – 1st degree felony

4. What is SAFP?

SAFP stands for the Substance Abuse Felony Punishment program.  This is an intense treatment program for probationers and parolees who need substance abuse treatment.   It includes an “in-prison” phase consisting of orientation, treatment, and then re-entry and relapse prevention.  Then there is a 3 month stay at a transitional treatment center, similar to a half-way house, followed by 9 months of outpatient treatment.  The program can last up to 30 months, depending on successful progress towards recovery and sobriety.  SAFP is perhaps the most intense drug treatment program available, but it is also considered one of the most effective.

DWI

1. I was arrested for DWI. What happens next?

Please remember that you have only FIFTEEN DAYS from the date of arrest to request a hearing on the potential suspension of your driver's license. If you do not request a hearing your license will be automatically suspended 40-days from the date of the arrest. In a typical case, the arresting police agency will send your arrest report to the District Attorney’s Office (“DA”). The DA will then file the formal charge against you in one our six County Courts at Law and you will receive a notice to appear. Generally, there is a four to six week time lapse between the time of your arrest and your fist court appearance.  The period between the arrest and the filing may be much longer in blood draw cases where lab results are pending.

2. How long will it take to resolve the charge against me?

The length of time it takes to resolve a DWI charge will vary. Each case is as unique as a snowflake based on the underlying facts as well as your goals and the prosecutor’s stance on your particular case.  Cases can be resolved as quickly as three months or as long as a year.

3. I failed or refused to submit to a breath or blood test. Is my driver's license automatically suspended?

No. If you request hearing through the Administrative License Revocation (ALR) process within fifteen days of your arrest, your license will remain valid until such time as a hearing takes place. We will personally handle all aspects of the ALR process on your behalf.  At the hearing the State must prove certain facts. If they fail to do so, your license will not be suspended.

4. WHY REQUEST AN ALR HEARING?

The ALR hearing will likely be the only opportunity you have to question the police officer that arrested you under oath prior to trial. If a hearing is set our attorneys will compel the State's lawyers to turn over all the evidence they intend to use against you at the hearing. This will include all police reports and frequently breath or blood test results. Also, unless strategy suggests otherwise, our attorneys will require the presence of the arresting officer at your hearing. The ALR hearing is a tremendous opportunity to test the strength of the State's case against you and to look for weaknesses in their case. At the ALR hearing we will be looking for ways to challenge all aspects of the state's case in an effort to maintain your right to drive. By way of example only:
  • Did the police stop your vehicle in violation of the law?
  • Did the police properly perform the HGN test according to their training?
  • Did the police properly administer the other Standardized Field Sobriety Tests in accordance with their training and the standards of the National Highway Traffic Safety Administration?
  • Do the recorded police observations concerning alleged intoxication rise to the level of probable cause?
  • Was there a valid refusal of a breath or blood test?
  • Did the police comply with the observation period prior to requesting a breath test?
  • Was discovery provided in a timely manner by the State's lawyers?
  • In blood test cases, is there proof that shows that the blood test was taken in a sanitary place, and by a qualified person?
  • In a Chapter 524 case, is there admissible, sufficient proof of operation?
  • Did the police provide any erroneous or extra statutory advice concerning the consequences of refusing or submitting to a breath test.
If you prevail at the ALR hearing the civil case is dismissed and you WILL RETAIN YOUR RIGHT TO DRIVE.

5. What happens if my license is suspended?

If your license is suspended you will likely be able to petition the court for an Occupational Driver's License (ODL). An ODL is a restricted driver's license that will allow you to drive up to twelve hours a day.

6. Why do I need an attorney who focuses his practice on DWI defense?

Defending DWI cases properly requires intricate knowledge of the applicable law; the science involved in breath, and the procedure used by the police to obtain and evaluate evidence in a DWI case. Most attorneys, even those who practice criminal law, do not focus on DWI defense. An experienced DWI attorney may see defenses that may be overlooked by some other attorney. In selecting a DWI attorney, just a few questions to consider are:
  • Does the attorney have experience and success trying DWI cases?
  • Can the attorney explain in clear terms the basic operation of the breath testing device known as the Intoxilyzer 5000?
  • Does the attorney remain current on DWI focused continuing legal education?
  • What specific strategy does the attorney plan to advance in your ALR hearing?
  • Does the attorney try blood draw cases to a jury?

7. I refused to submit to the Standardized Field Sobriety Tests, am I in trouble?

No. You have a lawful right to refuse to submit to any field sobriety test, including the One Leg Stand, the Walk and Turn, the Horizontal Gaze Nystagmus test, and the Preliminary Breath Test. You may also refuse to submit to the Breath Test, however your refusal may trigger certain consequences for your driver's license.

8. I am guilty, do I still need a lawyer?

The short answer is yes. Even a first offense DWI carries a potential punishment range of up to one hundred eighty days in the County Jail and up to a $2,000 fine. Even if you are sure that you are factually "guilty" you should still seriously consider an experienced DWI lawyer who knows the law, the science, and the ins and outs of the court system. First and foremost, we will always force the State's Attorney's to turn over ALL of the evidence to me. The evidence should include, at a minimum, all of the police generated documents, the DVD or video of both the roadside and Intoxilyzer room, and witness statements, the Intoxilyzer breath testing slip, and a lab report in blood test cases. Only when all of the evidence is available can you make intelligent decision about how to proceed. Even if you feel that you were intoxicated, and experienced DWI attorney should be looking at issues such as:
  • How do you look on video?
  • Was the breath or blood evidence obtained lawfully?
  • Was the breath or blood evidence obtained in such a way that its analytical reliability or validity may be compromised?
  • Was the stop of your car by police lawful?
  • Did the police officer administer the Standardized Field Sobriety Tests correctly?
  • Does the police report contain internal contradictions, or is it contradicted by the video?
  • Will the State be able to locate and secure the attendance of the witnesses at trial?
So, even if you think you are guilty, do yourself a favor and hire an experienced DWI attorney who can analyze your case for weaknesses that may benefit you.

9. Am I able to obtain a Deferred Adjudication for a Driving While Intoxicated Charge?

Not under the current state of the law. However legislation was introduced recently introduced which would authorize people charged with a first driving while intoxicated case in Texas to receive deferred adjudication.  The legislation failed, however it may be raised again at a future date in the Legislature. In a deferred adjudication situation, no judicial finding of guilt is made and and the end of the deferral period the case is dismissed.

10. When would I need SR-22 Insurance?

Ordinarily, SR-22 insurance will be required after a DWI conviction or when a person needs an occupational driver's license due to a driver's license suspension. Frequently the suspension is the result of a DWI conviction or an ALR suspension. You may obtain SR-22 insurance by contacting your own insurance company or by contacting another agency. Our office regularly recommends two separate agencies that have provided excellent service to our clients.

Theft Laws

1. I was arrested for Theft, what happens next?

The State typically files a criminal case within 1-2 months. Theft cases can range from a Class C Misdemeanor all the way to a First Degree Felony. The level of offense will depend on the value of what is alleged to have been stolen. Misdemeanor Theft is the most common form of Theft prosecuted in Collin County. Class C Theft (property less than $50), Class B Theft (property $50 - $500); Class A Theft (property $500 - $1,500). Felony Theft involves property valued at $1,500 or more.

2. What are the possible punishments for Misdemeanor Theft?

Potential punishment increases with each degree of theft:
  • Class C: $0 - $500 fine
  • Class B : 0 days  – 180 days in jail and/or $0 - $2,000 fine
  • Class A: 0 days – 1 year in jail and/or $0 - $4,000 fine
The vast majority of Theft cases resolved by a plea or finding of guilt result in some form of probation. Misdemeanor probation can last up to 24 months and can include a wide array of probation terms and conditions, including payment of hefty fines and fees.

3. How will a Theft case affect my record?

Theft is a crime of moral turpitude. If you are convicted of a theft offense, it will remain on your record for life. Unlike some criminal offenses, a Theft conviction will usually raise the concern or disapproval of a current or potential employer.

4. Is there a way to keep a Theft case off my record

There are a few of ways to keep a Theft off your record. The likelihood of doing this will depend upon a variety of factors, including the circumstances of the case and the person who is accused of committing Theft. 

5. What happens at my first court appearance?

The first appearance is more like a work session than anything else. It is an opportunity for your attorney to meet with the prosecutor and discuss the case. Typically, the prosecutor will have a police report, video, and witness statements to share with your attorney along with an initial recommendation for a punishment that the you can receive in exchange for a guilty plea. The first appearance date is usually concluded by selecting another appearance date.

6. What evidence is there that I stole something?

In a shoplifting case, there is usually one or more store employee who claim to have seen something take place inside the store. Frequently, a shoplifting case will involve camera footage shot from one or more angles. Depending upon the circumstances, the police may have conducted further investigation when they arrived, but they don’t always. The State does not need a police officer to testify to prove their case.

7. A store employee was harassing and humiliating to me, did he violate my rights?

Many places of business employ a loss prevention department. These are people who can be dressed up like officers or in plain clothes secretly watching customers. The law allows these people to use limited force to prevent shoplifting. They may grab you, detain you, and question you until the police come. They are not required to play by the same rules that police do because the law considers them to be private, as opposed to government, entities… therefore their thoughtless conduct rarely negates an arrest – but judges and juries have little tolerance for such conduct by store employees and may give them little credibility as witnesses.

8. Why am I in trouble when my friend did it?

The law allows the State to try and put you on the hook for the conduct of another person. Specifically, the law says “A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the person to commit the offense.” However, mere presence alone will not make someone a party to the offense. In this type of case, the prosecution has the burden to show you did something to affirmatively aid the person committing the theft.  Mere presence alone is not enough.

9. How did they come up with a dollar amount greater than what was on the sticker?

The law also allows the State to try and prove a dollar amount that varies from the sticker price. Specifically, the law says that “the value of the property taken is the fair market value of that property at the time and place of the offense,” and “fair market value is . . . the amount the property would sell for in cash, giving a reasonable time for selling it.”  Merchants are aware of the statutory amounts, and it’s not uncommon for them to attempt to find creative ways to ‘pile-on’ the price.  This is a specific area a trained attorney knows to attack.

10. Is there a link between shoplifting and depression?

Studies have shown that there is a link between shoplifting and depression especially for middle-aged women. While this may not be a circumstance which leads to a jury finding someone not guilty, it is something to consider when talking about punishment.

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