Jeremy Rosenthal
Kyle Therrian
Derk Wadas
Bo Kalabus
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Understanding the Basics of SR-22 Insurance

SR-22 Insurance Form

If you live or work in Collin County, Texas, you understand the importance of being able to drive. But driving is a state-regulated privilege, not a right, and therefore there are many legal requirements that a driver has to comply with. These requirements include maintaining a certain level of automobile insurance. For certain drivers deemed a higher risk by the state, a driver may also need to obtain a special insurance endorsement.

What Is an SR-22 Endorsement?

This endorsement is referred to as an SR-22 form. Basically, it requires the issuer of the endorsement to monitor in the status of the underlying policy and inform the Texas Department of Public Safety of any changes. In other words, if a driver required to have an SR-22 endorsement allows his or her insurance policy to lapse, the insurer must inform state authorities the driver is not currently insured.

Why Do I Need an SR-22 Endorsement?

Texas generally requires an SR-22 when a driver has had his or her license suspended following an accident or a conviction for driving under the influence of drugs or alcohol or for a suspension as a result of the Administrative License Revocation (ALR) process. For example, a Collin County resident convicted of DWI may have his or her driving privileges suspended but still be able to receive an occupational license that allows him or her to drive to work and school. An SR-22 is necessary, however, to obtain an occupational driver’s license.  An occupational driver’s license will allow someone to continue to drive during the period of time in which their license is suspended.

What Does an SR-22 Actually Do?

The SR-22 is formally called a “Financial Responsibility Insurance Certificate.” It certifies to the State of Texas that you are currently carrying a minimum amount of automobile liability coverage. Currently, those minimums are $30,000 in coverage for bodily injury or death caused to one person in an accident or $60,000 for multiple people injured or killed in the same accident, and $25,000 for the destruction of any property in a single accident.

Does My Insurer Have to Issue Me an SR-22?

An insurer may refuse to issue, or delay issuing, an SR-22. In many cases even if your insurer does issue an SR-22 it will decide not to renew your policy because you are deemed too high of a risk. Therefore, if your insurer refuses to issue an SR-22, you may have to obtain a new policy from a different insurer.

Do You Need Help From a Collin County Criminal Defense Attorney?

While there are many circumstances where you may be required to obtain an SR-22 endorsement, the most common reason is that you have had your license suspended following an ALR hearing, or following a conviction for Driving While Intoxicated. This is just one example of how a DWI can have a significant long-term impact on your life. If you have been charged with Driving While Intoxicated and need assistance from an experienced Collin County DWI lawyer, contact the offices of Rosenthal & Wadas in McKinney, Texas, today.

Posted in Criminal Defense, DWI

DWI Process in Collin County

DWI Process Blog Post

By: Justin Wilson

While the facts of every DWI investigation have their own unique nuances, in general, DWIs follow a predictable process. The following outlines this process after an arrest through the disposition of a case.

Bond Process

After you have been arrested and booked on a charge of DWI, you will be held in a jail facility. Some cities, such as Plano and Frisco, have their own jails and will hold you there overnight before transferring you to the Collin County Jail the next day. Other cities, such as McKinney, do not have their own jails and will transfer arrestees directly to the county facility. There, you will wait until a judge can see you to set a bond and attach conditions to that bond. This process may require you to spend one or two nights in jail. Once the judge has set your bond, someone can either pay the full amount of the bond in cash (cash bond), or the individual can pay 10% to a bail bondsman (surety bond). The key difference here is that, in a cash bond, once your case is disposed, the cash amount will be returned or it can be applied to court costs and fines. With a surety bond, the bail bondsman keeps the 10% paid as income.

Attorney Writ Bond

There is another option if you do not want to wait in jail until the judge sees you – an Attorney Writ Bond. If you are arrested for DWI, you can contact a Collin County DWI attorney and for a fee, the attorney will drive to the jail, meet with someone there on your behalf, and file the necessary paperwork. Once the paperwork is processed, you will be released from jail.

About a week later the attorney who executed the writ bond for you will meet you at the courthouse and represent you in a bond condition hearing. Typically, the judge will require you to abstain from alcohol, submit to random urinalysis, and may require you to have a deep-lung ignition interlock device installed in your vehicle. Typically, in Collin County, the courts will require you to install an ignition interlock device on any car that you own or operate if your alcohol concentration is a .15 or greater, or there was a car accident, or if you are accused of committing a second or greater offense of DWI. Once the hearing is complete, you will remain on bond as long as you comply with all the conditions.

ALR

Once you are arrested for a DWI, the law enforcement officer is required to give you written notice that your license will be suspended. Generally, this is done in the back of the patrol vehicle or in an intoxilyzer room at the jail. Once the officer gives you the written notice, the clock starts ticking. You have 15 days from the time notice is given to request your Administrative License Revocation (ALR) hearing with the Texas Department of Public Safety.

If you voluntarily submitted a specimen that was .08 or more, your license will be subject to a 90-day suspension, assuming you have no previous “alcohol related law enforcement contacts.” If you refused to submit a specimen, your license will be subject to a 180-day suspension. Again, this assumes that there are no prior contacts. Previous convictions or alcohol related suspensions may have the effect of increasing the length of the suspension. In order to avoid the ALR suspension you must request an ALR hearing. By hiring a Collin County criminal defense attorney, he or she can request your hearing and file all the necessary paperwork and subpoenas. Your presence is not required at the ALR hearing.

At the hearing, your attorney will be able to cross examine the officer involved in your case. From time to time, the officer will not show up. If that happens your license will not be suspended, if the officer was under a subpoena issued and served by your attorney. If the officer appears in court, then an administrative law judge will review the police report, consider the officer’s testimony under cross examination, and make a decision regarding whether your license will be suspended.

During ALR hearings, the State has a lower burden of proof than at trial. The attorney you hired may petition the court to grant you an Occupational Driver’s License (ODL). An ODL will allow you to legally drive your vehicle for work and other necessities during certain hours of the day. If your license is suspended and you drive without an ODL, you risk arrest for a Class B Misdemeanor for driving with a suspended license. Once the 90 or 180 days have elapsed, your license will be reinstated.

If you do not request a hearing, the suspension automatically goes into effect on the 40th day after the Notice of Suspension was served. The length of the suspension, as noted above, will be 90 days if you submitted a breath or blood specimen with an alcohol concentration above .08, or it will be 180 days if you refused to submit a specimen.

Filing Your Case

It can take several months for the police agency to file your case with the District Attorney’s Office. If they took your blood, it may take even longer for your case to be filed because the DPS Garland Crime Lab will have to test your blood for its alcohol concentration. If law enforcement suspects intoxication due to drugs, they will send your blood to the DPS Austin Crime Lab, which will take even longer. Once the police agency files your case, if it is a misdemeanor, an intake prosecutor will make the decision to accept your case. If your DWI is a felony, then your case will go before the grand jury for secret deliberations. If the grand jury finds probable cause, it will issue a True Bill of Indictment. If the grand jury does not find probable cause, then it will issue a No-Bill, and your case will go no further.

If your case is accepted or indicted, it will be assigned to a court, and you will receive notice by mail of your first appearance. You must show up to your first appearance. If you do not, courts will usually give you a few days to check-in, but if you do not, the court will forfeit your bond and issue a warrant for your arrest. During this first appearance, your attorney will meet with the prosecutors, receive copies of the evidence the State has against you, and will let you know the State’s initial offer.

After the first appearance, your attorney will review all the evidence and assess the strengths and weaknesses of the State’s case. Your attorney, and likely you, will have to appear at subsequent court settings called announcements. These announcements are work sessions where your attorney will negotiate with the State and discuss any outstanding evidentiary issues. Once you have had the maximum number of announcements for the respective court, you will have to set your case for a plea or trial.

The Decision to Plea or Go to Trial

Your attorney will advise you about the strengths and weaknesses of the State’s case and all the possible outcomes. If your attorney has found that the police officer may have performed an unlawful search or seizure, they can file a motion to suppress. The motion to suppress hearing is like a mini-trial. The State usually calls the primary officer to testify. Your attorney will cross examine all witnesses. The scope of the testimony will be limited to the point where the unlawful search or seizure occurred. Then the attorneys will make legal arguments based on case law as to the legality of the search or seizure. If the judge grants your motion to suppress, then all evidence gathered after the unlawful act is suppressed. If the judge denies your motion, you can still plea or take your case to trial.

If you decide to plead guilty, you will either serve time in a detention facility, or the court will suspend your sentence for a certain number of months or years of community supervision. If placed on community supervision, you will have to complete a number of conditions and not violate the terms of your probation. If you have any violations or fail to complete the conditions, you risk having your probation revoked.

If you decide to plead not guilty, your case will go to trial. A jury or the judge alone will hear the evidence. The State has the burden of proving your guilt beyond a reasonable doubt. To meet this burden, the State will usually bring officers, nurses, intoxilyzer operators, blood analysts, and sometimes 911 callers to testify against you. You do not have to present any evidence. Your attorney will cross examine the State’s witnesses. You will decide, based on your attorney’s advice, whether or not to testify. Your attorney may call any other witnesses who will be helpful to your case. Both sides will make closing arguments, and the judge or jury will determine if the State has met its burden.

If you are found not guilty, you will be eligible for an immediate expunction to wipe the arrest from your record. In addition, if your driver’s license was suspended as a result of an ALR suspension arising from the same case, you are entitled to have that suspension rescinded by the Department of Public Safety. If you are convicted, you will move into the punishment phase of your trial. Prior to the trial, you will decide if you want a jury or the court to assess punishment upon your conviction. You will either serve time or be placed on community supervision. Either way, the court will send notice of your conviction to DPS, and DPS may suspend your license again. For first offense DWI cases, if you are placed on community supervision (probation) and you complete the DWI Education Class in a timely manner, you will not suffer an additional driver’s license suspension based on the conviction. If that happens, your attorney can petition for another ODL so that you can drive legally for work and life obligations.

At Rosenthal & Wadas bold strategies and aggressive defense techniques are used to fight DWI charges from start to finish. Clearing your name is our number one priority. Contact our office 972-369-0577 for a free consultation and to learn how we provide personalized legal representation for all of our clients. We believe in your case and will fight to protect you. It is at the heart of everything we do.

Posted in DWI

What Constitutes Guilt in a Collin County White Collar Crime?

White Collar Crime

“White collar crime” is a catchall term used to describe a wide variety of serious non-violent criminal offenses, typically financial in nature.

Types of White Collar Crimes

One of the most common types of white collar crime is embezzlement. This refers to a type of theft where someone has custody of someone else’s property and illegally converts it for their own use. For example, a corporate officer who diverts funds from the business to his or her personal bank account without permission commits embezzlement.

Other kinds of white collar crime are directed at consumers. Just about everyone has come across a telemarketing or Internet marketing scam at some point. A more sophisticated form of white collar crime against consumers is identity theft, where the criminal uses someone else’s identity to commit fraud.

Proving A “Guilty Mind”

When someone is charged with a white collar crime, the prosecutor must not only prove the underlying facts of the alleged offense but also the defendant’s “mens rea.” This is Latin for “guilty mind,” and it means the defendant must have acted intentionally and willfully in the commission of the crime. In other words, the prosecutor must prove—beyond a reasonable doubt—that the defendant “knowingly” participated in a scheme designed to obtain someone else’s property through fraud and took some action to further said scheme.

Now, a prosecutor may be able to prove intent using only circumstantial evidence. That is, a jury may infer that a defendant formed the required criminal intent based on a number of pieces of evidence rather than, say, a confession or eyewitness testimony. In white collar cases, prosecutors often rely on forensic accounting and other complex analytics to “reconstruct” an alleged fraud.

It should also be noted that different white collar crimes may have different mens rea standards. Many federal crimes, for instance, impose a lower burden of proof on prosecutors than do similar state laws. And almost any white collar crime can be elevated from the state to federal level, as all financial activity implicates interstate commerce in some way.

You Need a Collin County Theft Attorney

There are many cases where a Collin County resident may unjustly get caught up in a white collar criminal investigation. Overzealous prosecutors may see criminal activity where none exists. There are even cases where prosecutors and police may have coerced an innocent person into committing a crime.

If you find yourself in such a situation it is important you work with an experienced Collin County white collar crime attorney. White collar cases are often complicated and can overwhelm a defendant. And given the severe consequences that come with a criminal conviction, you need to have someone on your side who understands how the system works. Contact the offices of Rosenthal & Wadas in McKinney, Texas, if you are facing criminal charges and require immediate legal assistance.

Posted in Fraud, White Collar Crime

The Texas Three Strikes Law

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If you are like most people, you have likely heard of Texas’s “three strikes law” in reference to criminal proceedings. The law derives its name from baseball, where batters who accumulate three strikes “strike out” and their chance to bat is over. In the context of Texas criminal law, rather than referring to missed or foul balls, the word “strikes” refers to felony convictions. If you are convicted of three felonies in Texas, you can be subjected to extremely harsh legal penalties – in many cases, you will be facing a minimum prison sentence of 25 years, and up to 99 years or life.

What Crimes Count as Strikes?

To be subject to the enhanced mandatory minimum of 25 years under Texas law, you must be facing a first or second degree felony indictment and have been twice previously convicted of two non-state jail felony offenses. The second must have been committed after the first conviction became final,( i.e. not deferred, on appeal, etc.) Some of the offenses that can be a felony include the following:

  • Robbery
  • Homicide
  • Sexual Assault
  • Arson
  • Kidnapping

As a result, it is crucial for anyone facing a third felony conviction to retain a skilled criminal defense lawyer that understands how the complicated Criminal History Enhancement laws work and how to represent the client effectively in a way that minimizes the likelihood that the client will be subjected to a lengthy minimum sentence.

Less Serious Offenses Can Still Result in Significant Penalties

Any type of criminal conviction is a serious matter in the state of Texas, so do not make the mistake of thinking that you do not need to aggressively defend against allegations of misdemeanor offenses or a first or second felony. While perhaps not as serious as a third felony, these matters can nonetheless result in serious consequences, including fines, probation, community service and even jail time. Fortunately, in many cases, a skilled attorney can have an impact on how your case is resolved and may be able to help you avoid a conviction.

Call a Collin County Criminal Defense Attorney Today to Schedule a Free Consultation

If you are facing any type of criminal case, from a first misdemeanor to a third felony, you should call an experienced attorney as soon as possible. The McKinney criminal defense lawyers of Rosenthal & Wadas are ready to help. To schedule a free consultation with one of our Collin County criminal defense lawyers, call 972-369-0577.

Posted in Criminal Defense, Federal Criminal Defense

Tips On Avoiding a DWI This July 4th Weekend

Sparklers

With Fourth of July falling on a Monday this year it allows many of us to enjoy a three-day weekend. It will be the perfect time to get together with friends and family whether at a backyard barbecue or the local fireworks show. During these events many people consume alcohol and then unfortunately get behind the wheel of their car. We ask that you plan ahead and use these tips when making your holiday plans.

  • Designate a driver – Do you have friends attending the same party you’re planning to go to? If so, try to hitch a ride with them or their sober driver.
  • Use Lyft or Uber – All you need to do is download the Lyft or Uber App on your smartphone and enter your credit card information. When you are ready to go home, simply request a ride and a driver will come to your exact location.
  • Arrange to stay at a friend’s house – If you are at a friend’s house and can spend the night there, then it would be a good idea to sleep there until the next day when you are able to drive.
  • Get a hotel room – Book a room near the venue and walk over at the end of your night.

During holidays, where there could be a higher number of inebriated drivers on the roads, the police are often paying close attention. This can make a driver more vulnerable to being stopped for routine violations such as an expired registration. So in addition to not driving while intoxicated, making sure your car registration is current could prevent an unnecessary detention from a police officer.

Rosenthal & Wadas wishes you a safe and happy July 4th holiday weekend. If you find yourself in need of an experienced Collin County criminal attorney, don’t hesitate to contact our office (972) 369-0577. Our office is available to take your call 7 days a week, around the clock.

Posted in DWI

What to do After an Ignition Interlock Violation in Texas

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A drunk driving conviction can result in a number of significant legal penalties, including the installation of a deep lung device, also known as an ignition interlock device. Like a breathalyzer, these devices measure the amount of alcohol in a person’s breath and use that information to determine their blood alcohol concentration (BAC). When installed, a breathalyzer requires the driver to provide a breath sample prior to starting the car – if the driver has alcohol in his or her system, the deep lung device will not allow the vehicle to start. In addition, the device requires breath samples from the driver at random intervals and will disable the vehicle if it detects alcohol in the sample.

If you have been ordered to use an ignition interlock device, there are many ways that you can violate your probation. These include the following:

  • Driving a vehicle without an ignition interlock device;
  • Tampering with the device;
  • Attempting to circumvent the device; and/or
  • Driving with a prohibited concentration of alcohol in your system.

If you violate an ignition interlock device order, the judge that is presiding over your case has a number of options, including prohibiting you from driving at all, or ordering you to wear a Secure Remote Alcohol Monitoring (SCRAM) bracelet. In some cases, a violation may be so serious as to cause the court to completely revoke your probation and impose the maximum penalties available under the Texas law.

What to do If you are Facing a Deep Lung Device Violation

Because of the significant penalties that are possible, it is important to do everything possible to defend against allegations of violating an ignition interlock device order. Deep lung devices are not foolproof and can register false positive. In fact, even your morning mouthwash could cause the device to detect alcohol in the sample you provide. If you have been accused of an ignition interlock device violation in Texas, you should talk to an experienced criminal defense lawyer immediately.

Contact a McKinney Criminal Defense Attorney Today to Schedule a Free Consultation

Deep Lung Device violations have the potential to result in significant legal penalties, including the extension of your probation and even jail time. To schedule a free consultation with one of our Collin County criminal defense attorneys, contact Rosenthal & Wadas today at 972-369-0577.

Posted in Criminal Defense, DWI

Boating While Intoxicated in Texas

Boat

Many people have been warned about the dangers of operating a car while under the influence of drugs or alcohol. However, it is not just car and truck drivers that must follow these driving regulations. Like Driving While Intoxicated (DWI), operating a boat while intoxicated of alcohol or drugs can also carry severe penalties in Texas.

Texas has more inland waterways than any state in the country, and after heavy rains this spring the lakes are full and the boat ramps are open. If you are looking to spend a day out on the water, knowledge of Texas Boating While Intoxicated (BWI) laws can help prevent loss of boating license or the boat itself.

Things to remember about Texas boating laws:

  • Same as a DWI, a BWI occurs when blood alcohol content is 0.08 or above
  • A first conviction carries up to $2,000 fine and 180 days in jail
  • A second conviction carries up to $4,000 fine and 1 year in jail
  • A third conviction carries up to $10,000 fine and 2 to 10 years in jail
  • License suspension when operating any vessel with an engine over 50 horsepower

Slight differences in DWI and BWI law is that law enforcement officers do not need probable cause to stop a boat for safety inspections. Another difference is it is illegal for a person to have an open-container of alcohol in a motor vehicle but Texas law allows for open containers to be present on boats. The person driving the boat must be licensed according to boat size and regulations, and is subject to boating while intoxicated laws. Public intoxication laws may apply for passengers on the boat.

If You Have Been Stopped for BWI

Excessive boat speed, aggressive turn speeds, and lack of lights and other nighttime safety features may cause a boat to be stopped by police. If a driver has been stopped by police under the suspicion of boating under the influence, there are a few factors that can complicate a field sobriety test.
Spending a day in the sun can create physical conditions that mimic that of intoxication. Red eyes and skin, unsteady footing from spending time on a boat and lightheadedness from dehydration can be mistaken for popular drunk-driving warning signs.

Contact the Collin County DWI Lawyers today

Being stopped for a BWI could result in serious penalties. The Collin County criminal defense attorneys at Rosenthal & Wadas can help prevent the loss of your boating rights and privileges on open waterways. Call our office today for a free consult – 972-369-0577.

Posted in BWI

What Constitutes a Computer Crime in Collin County?

Computer Crimes

The term “hacker” has become ubiquitous in the modern computer age. But not all hackers are created alike. Many people classified as hackers are actually hired by major companies for their computer knowledge and tasked with discovering weaknesses in information technology networks. The other type of hacker—the one most of us associate with the term—are what are dubbed “black hats” by many experts. These hackers are people who exploit computer vulnerabilities for malicious reasons or personal gain. This type of hacking is not merely a problem for computer owners; it is a serious criminal offense.

Breach of Computer Security

Texas treats “black hat” hacking as a form of “computer crimes.” Under Texas law, it is illegal for anyone to “knowingly access a computer, computer network, or computer system without the effective consent of the owner.” Effective consent means the hacker must have permission from someone authorized to act on behalf of the computer’s owner, and that permission was not obtained through deception or coercion.

A first offense for a breach of computer security, as described above, is considered a Class B misdemeanor in Texas, which carries a maximum penalty of $2,000 and up to 180 days in jail. If a person has at least two prior convictions for illegal hacking, a subsequent conviction is classified as a state jail felony, which carries a harsher sentence of up to $10,000 and up to two years in prison. It is also considered a state jail felony if a hacker, regardless of the number of prior convictions, illegally accesses a computer owned by the government or a “critical infrastructure facility,” such as a power plant or a trucking terminal.

Damages Caused by Hacking

Beyond merely accessing someone else’s computer without permission, Texas law imposes additional penalties when a hacker tries to use any data obtained from the victim’s system for personal gain. Anyone who illegally accesses a government or business computer “with the intent to obtain or use a file, data, or proprietary information stored” on said machine in order to “alter, damage, or delete property” is liable depending on the total monetary damage done. For example, if a hacker introduces a computer virus (or “malware”) that destroys the files on a victim’s machine, it may be treated as a felony in Collin County and all other Texas jurisdictions.

Specifically, it is a third-degree felony if a hacker causes between $30,000 and $150,000 in damages. This is elevated to a second-degree felony if the damages exceed $150,000, and a first-degree felony if it they are more than $300,000. But even hacking-related damages of as little as $100 may result in a misdemeanor conviction.

Have You Been Wrongfully Accused of a Computer Crime?

Texas law does make an exception for “white hat” hackers, i.e., people who break into computer systems with the owner’s consent to test security. There may be other cases where a misunderstanding leads to unwarranted criminal computer crimes charges. That is why if you have been charged it is important to seek advice from an experienced McKinney computer crimes attorney. Contact the offices of Rosenthal & Wadas, PLLC, if you need to speak with a Collin County computer crimes lawyer today.

Posted in Federal Criminal Defense

10 Things You Need to Know About Federal Gun Laws

shotgun

Texas has always been a state that protects the constitutional right to keep and bear arms. Texas law does not require law-abiding citizens to obtain a license or permit before purchasing a handgun, rifle, or shotgun. A permit is only required to carry a concealed handgun in public.

But Texas law is not the final word when it comes to gun ownership. Federal firearms law extensively regulates the sale and transportation of weapons and ammunition across state lines. This includes any possession of a firearm “in or affecting commerce,” which effectively means all gun ownership is subject to federal rules that, in some cases, may conflict with Texas state law. Here are a few things that may disqualify you from legally owning a gun under federal law.

1. You Cannot Be a Felon

Under federal law, a person may not purchase or possess a gun if he or she has been “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” This includes any felony under Texas law. And while Texas permits a convicted felon to possess a firearm (at home only) once five years has passed since the discharge of sentence, federal law does not.

2. You Cannot Be a Drug Addict

Federal law prohibits any “unlawful user of or addicted to any controlled substance” from owning a firearm. This includes any substance controlled under federal law, such as marijuana. The phrase “unlawful user” is somewhat vague. It does not necessarily bar a one-time or recreational drug user from possessing a gun, but any drug user is at risk for prosecution under this provision.

3. You Cannot Be Declared Mentally Incompetent

Federal law bans anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution” from possessing a firearm. Note the law requires a legal adjudication or committal. It is not necessarily a federal crime for a person who is merely suffering from a mental disorder, such as depression, from owning a weapon.

4. You Cannot Be an Illegal Immigrant

Any non-U.S. citizen who is in the country illegally may not possess a gun. This also includes anyone temporarily in the United States under a nonimmigrant visa, such as a tourist or a foreign student. A lawfully admitted alien may, however, obtain a firearm if he or she possesses a valid hunting license issued by the State of Texas.

5. Your Military Record May Affect Your Rights

Federal law prohibits anyone who has been “discharged from the Armed Forces under dishonorable conditions” from owning a gun. Note this does not mean you must have a spotless military record. A dishonorable discharge is the result of conviction by a general court-martial for serious offenses, such as desertion, sexual assault, or murder.

6. You Must Still Be a Citizen

If you have “renounced” your United States citizenship, you may no longer legally own a firearm in this country. But renouncing your citizenship is not simply a matter of making an angry post on social media. Indeed, a person can only legally renounce his or her citizenship by filing a written declaration before a U.S. embassy or consular office in a foreign state.

7. There Are Special Rules for Domestic Violence

While most misdemeanor convictions, including first-time drunk driving offenses in Texas, will not automatically prevent you from owning a gun, domestic violence is different. Anyone convicted in a Texas state court of a “misdemeanor crime of domestic violence” is barred from possessing a firearm, as is any person under a civil restraining order issued on behalf of that person’s child or “intimate partner.” The restraining order must contain a finding that the person “represents a credible threat.”

8. No Guns Means No Bullets

If you are disqualified from possessing a firearm under any of the categories listed above, you are also banned from purchasing or owning ammunition. This includes any “cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.” And there is no minimum amount of ammunition necessary to trigger a prosecution: A person may violate the law by owning a single bullet.

9. Once Lost, You May Never Get Your Gun Rights Back

A felon convicted by a state court can only regain their gun rights under federal law if there has been a full restoration of civil rights at the state level. In practical terms, this means a person convicted of a felony under Texas law must obtain a fall pardon from the governor. These are rarely granted, and as the Texas Board of Pardons and Paroles notes, “The criteria for restoration of firearm rights are limited to extreme and unusual circumstances which prevent the applicant from gaining a livelihood.”

10. You Need to Get Legal Help Before It Is Too Late

If you have been charged with a felony in Texas, or face any other legal proceeding that may result in the loss of your gun rights, it is important to seek legal assistance right away. An experienced Collin County criminal defense attorney can fight to protect your rights. Contact the offices of Rosenthal & Wadas, PLLC, to speak with a Collin County lawyer today.

Posted in Federal Criminal Defense, Federal Firearms Violation

What Can Affect Breathalyzer Results in Collin County?

breathalyzer

Police officers in Collin County and throughout Texas commonly administer Breathalyzer or similar tests to motorists suspected of driving while intoxicated. It is important to understand, however, that a breath test only estimates a person’s blood-alcohol level. The most accurate way of determining blood-alcohol content is to analyze an actual blood sample, something that is obviously difficult for police officers to do on the side of a road. And while a person may be arrested and charged with a DWI based on the results of a breath test, there are many factors that may lead to a “false positive,” which can undermine the admissibility of such tests as evidence in court.

Breath Tests May Measure More Than Alcohol

Alcoholic beverages contain ethanol, a type of chemical compound classified as part of the methyl group. A breath analyzer may in fact detect dozens of non-alcoholic methyl group compounds that make a person’s blood-alcohol level seem higher than it really is. For example, some breath analyzers detect acetone, a chemical that is often produced in high concentrations by individuals suffering from diabetes.

What Is in Your Mouth?

A breath analyzer may also produce a false positive if a person has eaten or taken a single drink just before taking a breath test. For example, if you eat a dessert made with liquor, the residual alcohol may produce a breath test result that does not accurately reflect your actual blood-alcohol level. Other normal substances in your mouth, such as blood or tobacco smoke, can affect a breath analyzer as well. Additionally, any burping or regurgitation may also produce a false breath test reading.

Software and Design Defects

There is also the fact that a breath analyzer is a machine, and like all devices designed by humans, there may be defects that lead to inaccurate results. This is not a hypothetical concern. In 2009, Minnesota’s Supreme Court ordered the state to disclose the source code for its breath analyzer software. Analysts subsequently discovered errors that skewed the results in a number of DWI cases.

Get Help Fighting a Texas DWI Charge

The bottom line is that a breath analyzer test is far from infallible. You should never assume that failing a breath test means you will be found guilty of a DWI. Many people assume these tests are 100 percent accurate because they do not understand the underlying science and technology.

This is where an Allen DWI lawyer can prove invaluable. An experienced Allen, Texas DWI lawyer can help you—and more importantly, a jury—understand the potential problems with a breath analyzer test. A DWI conviction is a serious matter. Even a first offense can lead to a six-month jail sentence and a $2,000 fine. That is why you need an attorney who will confront all of the evidence against you, including a positive breath analyzer test result. If you have been charged with a DWI and need to speak with an Allen criminal defense attorney right away, contact the offices of Rosenthal & Wadas, PLLC.

Posted in DWI

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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