Jeremy Rosenthal
Kyle Therrian
Bo Kalabus
Derk Wadas

The Top 3 Reasons to Refuse & To Take Field Sobriety Tests

This is a really hard question with no right answer.  Instead of throwing out what I would call a “tough-guy” blog saying you should always refuse any police request 100% of the time, I’ll give you my thoughts on taking field sobriety tests and let you decide whether you’d consent to them (or not) if you ever find yourself in that situation.

Top 3 Reasons to Refuse Field Sobriety Tests:

1.  The Officer has Already Made Up Their Mind Anyway.

One of the psychological underpinnings of submitting to field sobriety tests (“SFST’s”) is because you feel like you have a chance to persuade police to release you.  This assumption is often incorrect.  Though the term ‘manipulation’ is a bit harsh, that’s exactly what an officer does when he/she infers they have an open mind about your arrest when they actually do not.  It’s very common for police to use terms like “let’s make sure you’re okay to drive” to get someone who is reluctant to take tests — with the clear implication being the officer could decide to let you go.  But remember, deception is a legitimate tactic for law enforcement.

2.  You’re Going to Fail (On the Officer’s Scoresheet Anyway)

The grading criterion for the tests are, in theory, objective.  If you step off the line, it’s a clue of intoxication.  If you raise your arms more than 6 inches from your side, it’s a clue… etc., etc., etc.  But referees in football and basketball have “objective” standards too.  They let their emotions and biases interfere all the time.  A police officer is no different.  An officer grading SFST’s incorrectly isn’t trying to shaft the test subject but they see what they want to see.  When you read the officer’s arrest report after the arrest — I can promise you that very little of what you did right will make it into the report anyway.

3.  The Tests Are Quasi-Scientific but are Sold to the Jury as Fully Scientific

The National Highway Safety Transportation Administration (“NHTSA”) has developed a battery of 3 tests commonly given as a package.  You can read more about the specific tests here.  NHTSA will tell you by failing the 3 tests they can correlate those failures into a certain percentage which indicates a person has over a 0.08 blood alcohol concentration.  Sounds solid, right?

Here’s the problem.  There was no “control” group with the testing.  So they got all the test subjects drunk, gave them all the field sobriety tests and if 10% managed to pass while they were drunk, according to NHTSA, the SFST’s were therefore 90% accurate in predicting if someone blew over the legal limit.

But what they didn’t do was test people who hadn’t consumed any alcohol or who had consumed very little alcohol.  In other words, they never tested for a false-positive rate.  Wouldn’t you like to know if 25% of sober people would fail too?  Or if 50% of people with diagnosable anxiety disorders would also fail with little or no alcohol in their system?  Or if 75% of people with recent concussions would fail too?

Here’s the Top 3 Reasons You Should Consider Taking Field Sobriety Tests

1.  Don’t Be the Bad Guy

Jurors can’t understand why someone would refuse field sobriety tests.  When you refuse all the tests you are turning yourself into someone defiant and disrespectful to authority.  As a prosecutor, I don’t think I ever lost a case where the defendant refused all the field sobriety tests.

2.  You’re Getting Arrested if You Completely Refuse

Make no mistake about it — the officer just won’t snap his/her fingers and say “aw shucks” as you drive off into the sunset.  If you refuse all the tests you’re going to jail, end of story.  Believe it or not, some officers will let you go in borderline cases.

3.  Jurors Tend to Tune-Out the Officer’s Scoring Anyway

Even though, as I said above, the officer will fail you on his/her score sheet doesn’t mean the jury won’t pass you.  Jurors watching someone take the SFST’s are putting themselves in your shoes to see how they would react or do the test.  Many think “I couldn’t do that either.”  So even if you know you’re getting arrested, by being a good sport and doing your best on the test — a jury may ultimately side with you anyway.

Ultimately the decision to take field sobriety tests is yours and yours alone.  I hope this discussion helps.

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

Posted in DWI

Differences Between the Juvenile Justice System and the Adult Criminal Justice System

You often hear about people being in the juvenile criminal justice system, and you may wonder “what exactly is the difference between the adult criminal justice system and the system that deals with juveniles?”  There are several things about the juvenile system that differ from the adult system because of the age(s) of the accused.  It is important to remember that although a child (up to age 17) will be placed in the juvenile system by default, occasionally they may be tried as an adult.  This will happen on occasions when the children are older (about 15-17 years old), and the crime is particularly bad (for example, a murder).

The first difference your child will notice after being arrested, is that he would be taken to a detention facility separate from the jail.  For example, in Collin County, adults are transported to the Collin County Detention Center, and juveniles are transported to the separate Collin County Juvenile Detention Center.  Unlike adult jail, where inmates can choose to sit all day or take part in the inmate worker program, those detained in the juvenile detention center are required to participate in academic education and other programs designed to give the detainees structure and continued growth throughout their time there.

Another difference between the two systems is that the adult system is focused somewhat on rehabilitation, but largely on punishment and retribution.  The juvenile system touts itself as being all about rehabilitation.  It may be that your child does not need rehabilitation—he or she could be a great kid who is getting pinned with something he or she didn’t do, or even if they did do it, maybe it was just a bad decision by an otherwise great child.  Either way, it is important for you to understand that the juvenile system is structured in such a way that you will hear the state, judges, guardians ad litem, and almost everyone else involved in the case speak about your child as though he or she needs it, although you and your child’s attorney may understand that that is not the case at all.

Because the focus in juvenile cases is less retributive and more rehabilitative, your lawyer has many different options to help you seal the records.  According to Texas Family Code 58.003(a), a juvenile may have his or her record sealed, the effect of which is to remove the incident from the juvenile’s criminal history, if it has been two years since the discharge of the case and the child has not gotten in any more significant trouble (i.e. no felonies, misdemeanors involving moral turpitude, or other actions requiring supervision).

Finally, in the adult system someone convicted is said to be “found guilty” whereas in the juvenile system a child is said to be “adjudicated to have engaged in delinquent conduct.”

Some of these differences are minute, but they should help you better understand the general approach in juvenile criminal justice as opposed to the adult system.

Posted in Uncategorized

What Happens on Juvenile Probation?

Juvenile cases often end in some type of probation, so if your child is going through the juvenile criminal justice system, it is worth taking the time to learn what can be required as a condition of juvenile probation.

If your child is considering resolving the case in a way that involves probation, the court and the state are given relatively wide latitude in determining what those conditions may be.  First of all, your child would be assigned to a Probation Officer.  This officer will be the one your child will report to on a regular basis.

When your child agrees to do probation, he or she is given a copy of the terms.  It is very important that your child get these terms in writing and adhere to them.  There are a few terms that are particularly common.  Community service is almost always required by law, so your child will likely be required to complete a certain number of community service hours. The probation officer can give you guidance on the specific places that community service is acceptable, but usually it needs to be in a place related to the alleged offense, if possible.  For example, if the offense is alcohol-related, your child may be asked to spend a certain number of hours serving at a center for victims of drunk driving.

Terms of probation may also include a curfew imposed by the court, particularly strict school attendance, counseling, or participation in certain clubs or activities outside of school.  If someone was physically hurt or property was damaged or stolen, probation may require your child to pay restitution to offset any costs or losses incurred by the alleged victim.

In some cases, particularly alcohol and drug-related offenses, your child may face suspension of his or her driver’s license.  If they do face such a suspension, it will not be for more than one year.

Finally, parents are expected to play a role in their child’s probation.  Though the parent obviously isn’t on probation – it might be hard for the parent not to feel this way.  Parents are charged with insuring that their children comply and, in some instances, even reporting violations.

This is just an overview of some common terms of probation, and the state and the court sometimes get very creative in determining those terms, but it should give you a good idea of what juvenile probation typically looks like.

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What Is Deferred Prosecution for Juveniles?

One very common outcome in juvenile cases is what is called “deferred prosecution” governed by Texas Family Code 53.03.  Deferred prosecution essentially dismisses the charges in exchange for serving probation.  When entering a deferred prosecution deal with the prosecutors, the juvenile doesn’t even have to admit guilt.  The case against the juvenile is paused while the juvenile attempts to complete probation.  If the juvenile successfully completes probation the case against them is dismissed.

The beauty of Deferred Prosecution is if the juvenile violates the terms – the case against them is merely unabated (or un-paused) and proceeds normally as if the deferred prosecution never happened.  This is different from deferred adjudication in the adult system where a violation would result only in increased punishment and the defendant wouldn’t have the ability to contest the original underlying case.

Another advantage the juvenile system has over the adult system is the juvenile has an absolute right under the family code to petition the Court for deferred prosecution over the objection of the prosecutor.  In the adult system the District Attorney’s office can and will arbitrarily bar otherwise good candidates from making a deal to clear their record.

Deferred prosecution for juvenile cases also shouldn’t be confused with the Collin County District Attorney’s deferred prosecution program.  That program is for adults typically charged with misdemeanor or low-grade felony cases and does require an admission of guilt in exchange for informal probation.

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What Should I Do Now That My Child Has Been Arrested or Detained?

Once your child is in the criminal justice system, it is only natural that you would have questions about what to do next.  First of all, it is important to know what information you are entitled to.  Well-intentioned law enforcement officers will invariably share facts of the case with you – and you shouldn’t be surprised when their version corroborates their decision to arrest.

Under Texas Family Code Section 61.102(a), there are things you are entitled to know as soon as possible after your child is referred to the juvenile system.  Those things are:

1)      date and time of the offense;

2)      date and time the child was taken into custody;

3)      the name of the offense and its penal category (Class A Misdemeanor, Class B Misdemeanor, State Jail Felony, Third-Degree Felony, etc.);

4)      the type of weapon, if any, that was used;

5)      the type of property that was taken or damaged and the extent of damage, if any;

6)      the physical injuries if any, to the victim of the offense;

7)      whether there is reason to believe that the offense was gang-related;

8)      whether there is reason to believe that the offense was related to consumption of alcohol or use of an illegal controlled substance;

9)       if the child was taken into custody with adults or other juveniles, the names of those persons;

10)   the aspects of the juvenile court process that apply to the child;

11)   if the child is in detention, the visitation policy of the detention facility that applies to the child;

12)   the child’s right to be represented by an attorney and the local standards and procedures for determining whether the parent qualifies for appointment of counsel to represent the child; and

13)   the methods by which the parent can assist the child with the legal process.

Always get an attorney for a juvenile arrest.  Well-intentioned people in the law enforcement community will give you their uninformed opinion about how to handle the case, but these are people who won’t have to live with the consequences of decisions made going forward.  An attorney will be able to not only answer your immediate questions, but also explain the process to you in a detailed way that may put some of your fears to rest.  An attorney will be able to scrutinize your child’s case to determine if the arrest was unlawful, if the police officer made an error in his report or investigation, or if your child’s rights were otherwise violated in some way.  Attorneys see these types of cases every day and are very good at sorting out weaknesses in the State’s case against your child.  Further, even if their case against your child is ironclad, you need an attorney to help negotiate any type of plea deal that your child may want to take.

Regardless of whether or not your child made a mistake – an attorney can properly advise of steps to take to mitigate consequences such as drug rehabilitation or community service.

Know your rights, get an attorney, and help your child be pro-active!

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Does My Child’s School Need to Know About My Child’s Arrest?

Often one of the first concerns of a parent whose child is facing a criminal juvenile situation is “do I have to tell their school about this situation?”  There is no legal requirement that you disclose your child’s situation to their school.  In fact, generally the fewer people you and your child talk to about the situation, the better.

There are some practical implications of having a pending court case which may result in your child’s school learning of the issue.  One of the main ones is that your child will generally make several appearances in court, which are almost exclusively held during times that he or she is supposed to be in school.  While you or your attorney can typically get an excuse from the court for the absence, obviously the court’s excuse will state that the child was in court, which may lead to more questions from the school.  Another issue is that people (especially juveniles) talk, and should your child start talking to his or her friends about the situation, the facts of what happened or did not happen, etc. not only could that effect the case, word could also get back to school administrators.

If you do not want administrators, teachers, coaches, etc. asking questions and scrutinizing your child regarding his or her actions, you should act with discretion regarding who you to talk to about the situation, and encourage your child to do the same.

Posted in Uncategorized

What’s an “Emergency”? — Interference with a 911 Call

In many cases, a heated situation may result in raised voices, household items thrown, or even an assault or other physical element.  The police may be called out, and when they are, one or more parties may be arrested.  Oftentimes, it is common for someone during the heat of the moment to take away the one line the other person has for reaching out – the telephone.  And the taker may find himself charged with ‘Interference with an Emergency Telephone Call’, a class A misdemeanor.  This can be charged in combination with any other alleged offenses, including assault, even though it may seem that the taking of the phone is simply part and parcel of the overarching incident.

 The Penal Codes provides for two methods of charging someone with Interference with a 911 call.  First, an individual can be charged for allegedly interfering with or preventing someone’s ability to place a call during an emergency to an agency who would under normal circumstances provide assistance, such as the police, medical personnel or a facility, or the like.  Or, a person may be charged for allegedly “rendering unusable” a phone that would be used or is being used to place a call to request assistance in an emergency.  Under these provisions, then either the alleged destruction or damage to a phone or simply the taking of a phone by the caller can result in a charge of Interference. 

 But proving the “emergency” element of either of these allegations can also be extremely difficult for prosecutors to prove, which can be good for you if you find yourself charged with this kind of case.  According to the penal code, “emergency” in this context means “a condition or circumstance in which any individual [making the call] is or is reasonably believed [by himself] to be in fear of imminent assault  or…property…is in imminent danger of damage or destruction.”  Tex. Pen. Code 42.062(d).  So in non-legal terms what exactly does that mean?  It means that in addition to proving that a phone was taken or damaged or destroyed, the State also would have to prove that the person making the call was reasonable in believing himself or property to be in imminent danger (that it’s going to happen pretty much right then and there).  If there’s simply a fear of a future assault or a threat of a future assault or destruction, then it’s not an “emergency” per se.  If the person is simply not “reasonable” by the standards of a “reasonable person,” then it’s not an “emergency” per se. 

This doesn’t mean that proving Interference with a 911 call is impossible, but it requires much more convincing on a subjective level than many other offenses.  This can be used to your advantage if you find yourself charged with this offense alone or in conjunction with another offense, like assault.  An experienced attorney who can understand and articulate the nuances of this law can assist you in determining the strengths of your defense and how to protect your record.

Posted in Criminal Defense

Upping the Ante – Collateral Consequences of a Family Violence Conviction

As we’ve discussed previously, a conviction for domestic or family violence in Texas comes with plenty of hazards with regards to the prosecution and punishment side of things. But there are a number of other consequences that can have a dramatic impact on your life if you find yourself convicted of a FV offense. To begin with, in many cases a magistrate will issue what is known as an Emergency Protection Order (or EPO) on the request of the complaining party or a peace officer. Generally, an EPO prohibits further violence against or communicating in a harassing or threatening manner with the complainant, but it may also include provisions that prevent you from going home or to your spouse’s place of employment or to your child’s school. An EPO will also prevent you from possessing a firearm, except if you are a full-time sworn peace officer. And violating this order is itself a separate and distinct class A offense for which you can be prosecuted. If convicted, under federal law 18 USC § 922(g)(9), you may no longer own a gun. You can’t possess, ship or transport, or receive a firearm or ammunition. EVER. If you risk it and are found in possession of a firearm, you can be subject to federal penalties of a fine of up to $250,000 and up to 10 years in prison. A family violence offense will particularly stick out on background checks that are conducted by officers or employers. A FV conviction can also impact whether you are able to get or keep a professional license or are able to be bonded. And if you are in the United States on a temporary permit or illegally, a conviction can have serious immigration consequences, including but not limited to deportation, denial of naturalization or citizenship, and denial of re-entry. A FV conviction can also be used to enhance a new offense. For example, a conviction on one Class A Assault FV case means that the next charge for Assault FV will be “bumped up” to a 3rd degree felony. And adding a FV paragraph to a charge of Aggravated Assault with a Deadly Weapon makes that a 1st degree felony. Short version – a FV “paragraph” or enhancement can seriously up the ante with regards to punishment and collateral consequences. Having an experienced attorney who can advise you as to these consequences and present an effective defense on your behalf is key to protecting your liberty and even your livelihood.

Posted in Criminal Defense

Understanding the Zimmerman Verdict: The Mechanics of Self-Defense and Reasonable Doubt

I don’t pretend to know all the facts behind the death of Trayvon Martin, nor do I even know all the facts presented in a court of law and deemed credible by a jury. Lest there be any confusion, these are scarcely ever one in the same.

What I see when I watch cable news networks are talking heads marshalling the case for why Zimmerman is probably guilty or probably not guilty. I hear strong arguments in support of George Zimmerman initiating an altercation resulting in a fatal shooting, and I see social media buzzing with people angered by the perception of a failed justice system.

The fact is the justice system worked exactly how our framers intended and precisely how civil rights groups should demand. These interesting television debates which nobody will ever win are simply out of sync with the ultimate issue decided by the jury in the George Zimmerman case, and they fail to appreciate the mechanics of self-defense and reasonable doubt.

Legally and constitutionally a criminal defendant gets the benefit of the doubt and is presumed to have done nothing wrong at all. The burden placed on the prosecutor is to overcome this presumption by proof beyond all reasonable doubt. What’s more, when the defendant raises self-defense, the prosecutor must also disprove self-defense beyond a reasonable doubt.

How these extra-judicial debates miss the mark is by focusing on which side has the better argument. Inherent in the concept of proof beyond a reasonable doubt is the idea that a jury can agree the prosecutor’s theory of the facts is probably right, or even clear and convincing, and still be legally required to find a defendant not guilty beyond a reasonable doubt (or not guilty based on reasonable doubt about the prosecution’s theory against self-defense). The George Zimmerman jury could very well have believed the prosecution had the better argument but were unable to eliminate even a faint possibility the possibility the defense theory was correct.

The most difficult task of a trial lawyer is to simplify complex legal concepts for a jury. We all remember the phrase “if the glove doesn’t fit, you must acquit” from the O.J. Simpson trial. The glove that doesn’t fit in the Zimmerman case has been all but ignored by the media—perhaps because of a false sense that effective advocacy must always be exciting or sexy. This simply boring demonstrative (shown below) used by defense attorney Mark O’Mara in closing arguments could easily have been the most important thing shown to the jury throughout the whole trial. In one single chart the defense simplified foreign and counterintuitive legal concepts for easy public consumption. As an attorney, I can’t think of a better way to explain the Zimmerman verdict and the mechanics of self-defense and reasonable doubt.

 

 

 

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Posted in Criminal Defense

What is a Crime of Moral Turpitude

Not all crimes are created equal. Even within certain classification levels (i.e. Class A, Class B, etc.) there are crimes which burn off the page of a criminal record. While it is wise to fight to keep just about any offense off your record, none are more important than those considered “crimes of moral turpitude.” What is a crime of moral turpitude?

Like many things in the law it is a fancy phrase without a simple definition. Some quick legal research makes this point evident. The Houston Court of Appeals, in a case titled In the Matter of G.M.P., gives us no less than six definitions:

  1. Crimes involving moral turpitude are those that involve dishonesty, fraud, deceit, misrepresentation, or deliberate violence.
  2. Offenses concerning matters of personal morality.
  3. Anything done knowingly contrary to justice, honesty, principle, or good morals.
  4. An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general.
  5. Something immoral in itself, regardless of whether it is punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude.
  6. Immoral conduct is that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community.

In latin, we would refer to a crime of moral turpitude as malum in se which means “wrong in itself” – a collection of crimes which are traditional and not just created by statute, which are malum prohibitum.

There is not bright line dividing crimes of moral turpitude from the rest. Certainly, under any definition would fall crimes like Theft, Burglary, Assault, Rape, Murder and variations of those crimes. Because the definition of a crime of moral turpitude depends on the subjective opinions of society, the category can broaden based on the type of individual analyzing a criminal record. One good example would be the crime of Driving While Intoxicated. While most people would consider this a serious public safety and traffic related offense, there are a good amount of people who would characterize DWI as a crime of moral turpitude.

Crime of Moral Turpitude

The more likely it is for an offense to be considered a crime of moral turpitude, the more important it becomes to protect your criminal record. In Texas there are a variety of ways to avoid the mark of shame which comes with a criminal conviction, but not all are created equal. If your concern is a criminal record, hire an attorney who can explain the implications of each step in the criminal process and, when push comes to shove, leave it all out on the courtroom floor to protect a criminal record.

 

 

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Posted in Criminal Defense, Theft

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