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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

Injury to an Elderly or Disabled Person in Texas

Elderly Person

Sometimes the severity of a criminal charge depends as much on who the victim is as what the defendant allegedly did. Texas takes a special interest in protecting vulnerable populations–i.e., children, the elderly, and the disabled–from criminal activity. This is reflected in Section 22.04 of the Texas Penal Code, which requires additional penalties when an individual commits a crime against members of those groups.

Crimes Against the Elderly

For purposes of Section 22.04, an “elderly” person is anyone who is at least 65 years old. The defendant’s age does not matter. If a 70-year-old man assaults a 65-year-old woman, the former can be charged under Section 22.04 even though both parties are over 65 and the defendant is older than the victim.

Nor is it a defense to Section 22.04 that the defendant did not know the victim’s age at the time of the alleged offense. While the criminal act itself must be “intentional, knowing, or reckless,” knowledge of the victim’s age is not necessary. This means it is entirely possible for a defendant to find themselves facing an elevated Section 22.04 charge without realizing it.

Crimes Against the Disabled

As noted above, Section 22.04 also applies to crimes against disabled individuals. “Disability” includes any person who suffers from one or more of the following conditions:

  • Autism spectrum disorder;
  • Developmental disability, i.e. a severe, chronic condition attributable to any combination of mental or physical impairments that limits a person’s ability to carry out “major life activities”;
  • Intellectual disability;
  • Severe emotional disturbance, i.e. a mental or behavioral disorder that “substantially interferes” with a person’s ability to function in social settings; and
  • Traumatic brain injury.

Similar to crimes against the elderly, Texas law does not require proof that the defendant knew the alleged victim was disabled under any of the criteria listed above. But unlike age, which is an immutable characteristic, it is possible in a criminal trial to challenge an accuser’s “disabled” status. Indeed, this is a question for a trier of fact–the jury, or a judge in a bench trial–to decide.

Potential Liability for Nursing Home and Assisted Living Facilities

Section 22.04 covers three specific areas of criminal activity involving the elderly and disabled:

  • Serious bodily injury;
  • Serious mental deficiency, impairment, or injury; or
  • Bodily injury.

Criminal liability extends not only to the individuals who commit such acts directly, but in certain cases to the owners, operators, and employees of facilities designed to care for protected individuals, such as a nursing home or an intermediate living facility for the mentally disabled. Specifically, these owners, operators, and employees are liable not only for causing injury, but for an “omission” that leads to injury in violation of a statutory duty to act. In simpler terms, if a facility voluntarily assumes the responsibility to care for a disabled or elderly individual, it can be charged under Section 22.04 if through negligence or failure to act someone commits bodily injury against that individual.

A Collin County Criminal Defense Lawyer Can Help

All criminal charges are serious. But when an elderly or disabled person is the accuser or alleged victim, the consequences of a conviction are even more dire. If you have been charged and need help from an experienced Collin County criminal defense lawyer, call the offices of Rosenthal & Wadas today at 972-369-0577.

Posted in Criminal Defense

Steer Clear of a DWI Arrest on the Water this Memorial Day Weekend

Boating While Intoxicated

Memorial Day weekend means barbecues and pool parties with family and friends to officially kick-off the summer. For many folks, this weekend will be the first time to have their boat on the water this year. Before you head out on the lake take a few minutes to check some of the boat components that are key to having a safe outing.

  • Have a wearable life jacket for every person onboard
  • Anyone under the age of 13 must wear a life jacket at all times while the boat is underway – drifting is considered underway
  • Have onboard a fire extinguisher if you have enclosed fuel compartments or cabins
  • Keep alcohol to a minimum and choose a designated boat operator

Repercussions of Boating While Intoxicated

Although Boating While Intoxicated (BWI) is considered a misdemeanor, a BWI charge can result in confinement in jail and the assessment of fines, which include the following:

  • First offense – Up to $2,000 fine, 180-days incarceration or both.– Up to $2,000 fine, 180-days incarceration or both.
  • Second offense – Up to $4,000 fine, one-year incarceration or both.
  • Third offense – Up to $10,000 fine and incarceration between two and 10 years.

How Can Boating While Intoxicated Result in the Suspension of Your Driver’s License?

In general, a person is not required to provide a blood or breath specimen if suspected of boating while intoxicated in Texas. In order to obtain a specimen against the will of a person under suspicion of boating while intoxicated, a search warrant must be signed by a judge. However, refusal to provide a breath or blood specimen will result in the automatic suspension of your driver’s license.

Hiring an Collin County Criminal Defense Attorney

Boating laws in Texas are built to strongly discourage boating while intoxicated, especially since open containers are allowed on boats. However, you could face severe penalties if you are arrested and convicted of boating while intoxicated.

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. We are proud to offer the same type of legal advocacy and client-centered service that we would demand if we were in our clients’ shoes. To discuss your case and best defense options for proceeding, call us to set up a free consultation at 972-369-0577.

Posted in BWI

What Is a Motion to Suppress Evidence?

Motion To Suppress Evidence

If you are charged with a crime in Collin County, such as drug possession, you have a constitutional right to confront the witnesses and evidence against you. In some circumstances, you can even request the court exclude certain evidence if it was obtained by the prosecution in an illegal manner. Such a request is commonly known as a “motion to suppress.”

Protecting a Defendant’s Constitutional Rights

The motion to suppress is rooted in the Fourth Amendment to the U.S. Constitution, which protects all individuals from “unreasonable search and seizures.” This means that the law requires the police to have reasonable suspicion that a crime has occurred to seize you and search your person. The law also requires that the police have probable cause to believe that evidence of crime will be found before they search your car. Further, the law requires that the police obtain a search warrant based on probable cause before they may search your home. There are some exceptions to the Fourth Amendment requirement of probable cause such as consent, exigent circumstances, etc.

When an officer conducts a search in violation of the Fourth Amendment, the defendant may file a motion to suppress any evidence arising from the search. For example, let’s say a police officer stops a person for speeding and then proceeds to search the car without the driver’s permission or warrant. The officer finds illegal drugs in the car’s trunk and arrests the driver for drug possession. In court, the driver files a motion to suppress the drugs as a Fourth Amendment violation. The judge grants the motion and the prosecution will likely have to dismiss the case as no other evidence the defendant committed a crime.

Deterring Police Misconduct Enforcing the Fourth Amendment

The above example is a relatively simple illustration of how a motion to suppress works. In fact, not every unconstitutional search is suppressed, and not all suppressions lead to a dismissal of charges. The U.S. Supreme Court, which created the “exclusionary rule” that governs motions to suppress, has said the purpose of the rule is to deter police misconduct, not necessarily help defendants avoid conviction.

The courts have also recognized a number of exceptions to the exclusionary rule. If a police officer has a “good faith” belief that a search is constitutional–i.e., she obtains a warrant that turns out to be defective–a judge may deny a motion to suppress. Similarly, if the prosecutor can prove that evidence obtained through an unconstitutional search would have been “inevitably discovered” through other, lawful means, the judge may still admit the challenged evidence.

Indeed, motions to suppress are one of the more complicated facets of criminal law. An experienced Collin County criminal defense attorney knows how to handle a motion to suppress and other matters related to the protection of constitutional rights. If you have been charged with a serious crime, and are facing potential jail time, you want that experience on your side. Contact the offices of Rosenthal & Wadas, PLLC, if you need to speak with a qualified Collin County DWI lawyer right away.

Posted in Criminal Defense

What To Do If Your Teen is Pulled Over With Friends Who Have Drugs in the Car

Police Car

Your teenager is out with friends. One of them offers her a ride home. The friend is driving a little too fast and is pulled over for speeding.

But what started as a simple traffic stop soon escalates. The driver is acting nervous, which makes the officer suspicious. The officer starts asking questions. Teenagers are not stupid, but they are not going to outsmart a Collin County police officer. The officer eventually “convinces” the scared teens to let them search their purses and the car itself.

That’s when the officer finds illegal drugs in the console of a car. The driver insists the drugs aren’t his: He quickly blames your daughter, saying she must have put them there when he wasn’t looking. The officer decides to threaten arrest to everyone.

The Dangers of “Joint Possession”

You might think this is all a misunderstanding. Surely, you can just go down to the police station, explain that your child has never used drugs, and that will be that. Unfortunately, the Texas legal system does not work that way.

Even if your child is not found having drugs in their actual possession–i.e. in their purse or pockets–they may still be charged with a crime if prosecutors can prove there was “joint possession.”

The legal definition of “possession” is “actual care, custody, control, or management” of the contraband. Texas Penal Code s1.07(a)(39). For the Government to prove that the Accused “possessed” the contraband, the Government must prove: (1) possession and (2) that the Accused knew that the item possessed was contraband.

That much is clear enough when the Accused is caught with contraband in his pocket, or in her purse. But, what happens, for example, when a bag of pot is found in a car with two occupants? Can both be charged with possession of the same bag of pot?

Exclusive v. Joint Possession

“Exclusive possession” refers to possession of drugs or contraband by a single person. For example, if the Accused is arrested, and police find a gram of heroin in the Accused’s pocket or purse, the Accused would be alleged to have had “exclusive possession” of the contraband.

“Joint Possession” refers to possession of drugs or contraband exercised by more than one person. For example, if three people are in a car that is stopped by police, and a bag of pot is found underneath the back of the passenger seat on the floor, all occupants of the car could be charged with possession of the bag of pot if the meet the definition of Texas Penal Code s1.07(a)(39). Possession does not have to be exclusive—contraband can be jointly possessed by two or more persons. So, both occupants of the car can charged with possession of the same item(s) of contraband.

Here is a recent Texas case that illustrates how constructive possession works. A Texas police officer pulled a car over because he suspected the driver had outstanding arrest warrants. There were two female passengers in the car, one in the front and the other in the back.

The officer confirmed the identity of the driver and placed him under arrest for the existing warrants. The police then searched the two passengers, with their consent, but found no contraband. But after the car was impounded and searched following the arrest, officers discovered a syringe in “a compartment underneath the air conditioner/heater control.” The syringe contained methamphetamine.

Possession of methamphetamine is a much more serious offense than, say, marijuana. Indeed, the jury found the defendant in this case guilty of a state jail felony, which carries a two-year prison sentence. Although the defendant actually prevailed in an initial appeal, the Texas Court of Criminal Appeals reinstated the conviction after prosecutors appealed.

The Court of Criminal Appeals explained that while “mere presence is insufficient to establish possession” of illegal drugs, there are a number of factors prosecutors and jurors may use to infer a “link connecting the defendant to the knowing possession of contraband.” Among other things, these factors include:

  • The drugs were in plain view of the police officer;
  • The defendant was actually under the influence of drugs at the time of arrest;
  • The defendant made “incriminating statements” to the police;
  • The drugs were found in an “enclosed” place; and
  • The defendant’s overall conduct “indicated a consciousness of guilt.”

In this case, the defendant argued one of his passengers must have put the syringe under the dashboard when he wasn’t looking. But the Court of Criminal Appeals said the jury was allowed to infer “that the syringe was in the compartment the entire time.”

Has Your Child Been Charged With a Drug Crime in Collin County?

Most parents do not realize that their child can be charged with joint possession. This is why it is essential to teach your kids never to get into a car if they suspect anyone has or is using drugs. It is not enough for your own child to avoid using drugs. They need to be proactive and not allow themselves to be placed in a potentially compromising situation.

But everyone makes mistakes. Getting a ride home should not lead to a felony conviction. If your child has been unfairly charged with drug possession, you need to speak with an experienced Collin County drug crimes lawyer as soon as possible. Call a skilled Collin County criminal defense attorney with Rosenthal & Wadas today at 972-369-0577 if you need immediate legal assistance.

Posted in Drug Crimes

How Can an Edible Brownie Become a Felony Drug Charge?

Brownies

Marijuana possession is illegal in Collin County and throughout Texas, except for narrowly defined medical uses. While other states, such as Colorado, have moved to legalize “recreational” marijuana use, the criminal prohibition remains unchanged in Texas. This means that even if you purchase marijuana in a state where it is permitted, you cannot legally bring the pot back to Texas.

Life in Prison for 1.5 Pounds of Brownies?

Texas’ prohibition on marijuana extends to anything that contains its main psychoactive ingredient, tetrahydrocannabinol (THC). This includes any “edible” form of marijuana, i.e. a food product where THC is used as an ingredient. THC is quite popular in baked goods, such as cookies and brownies, since it is soluble in fats (such as cooking oil) rather than water.

While “cannabis edibles” may not contain much active THC–in many cases it is only between 5 and 10 milligrams–it can land a person in serious trouble with Texas law enforcement. Like most states, Texas classifies drug possession crimes according to the weight of the controlled substance recovered from the defendant. For instance, possession of 2 ounces or less of marijuana is a Class B misdemeanor punishable by up to 180 days in jail and a $2,000 fine. But possession of one pound of marijuana is a state jail felony, where the maximum penalties escalate to two years in prison and a $10,000 fine.

So what is the big deal, you might ask, if someone is caught with a little brownie containing 10 milligrams of THC? That is less than 2 ounces, right? Wrong. Texas considers the entire weight of the edible, not just the THC content, in making a drug possession charge. If you are carrying a pound of brownies–roughly 8 servings–you can be charged with possessing one pound of marijuana, even if most of what you are carrying is actually butter and flour.

If you think this is an exaggeration, consider a 2015 case from Austin. A 19-year-old man was arrested for “making and selling 1.5 pounds of pot brownies” and cookies, according to the Austin American-Statesman. The brownies contained not only THC but “hash oil,” a marijuana resin that is classified as similar to ecstasy. Possession of more than 400 grams of such drugs is a first-degree felony in Texas and carries a possible sentence of life imprisonment.

Let Our Collin County Drug Crimes Lawyers Help You

The defendant in the Austin case ended up pleading guilty to a second-degree felony charge and received probation. He may not be facing life in prison, but he is still a convicted felon. If you are facing unlawful possession of a pot brownie or any other marijuana product, you need to take the matter seriously. An experienced Collin County criminal defense attorney can make sure the police and prosecutors respect your constitutional rights. Contact the offices of Rosenthal & Wadas today at 972-369-0577 to speak with a Prosper, Texas drug crimes attorney who knows how to deal with these types of cases.

Posted in Drug Crimes

Is Grandma a Drug Dealer?

Prescription Drugs

The term drug crime conjures the image of meeting someone in a back alley to buy marijuana or heroin. But for many Collin County residents, drug crimes involve everyday products you get at the local pharmacy. In fact, Texas prosecutors have increasingly focused on prescription drug crimes, especially those involving popular pain medications.

Drug Crimes Involving Prescription Drugs

Prescription drugs are classified as “controlled substances” by federal and state laws. This means it is illegal for anyone to possess them without a doctor’s prescription. So, for example, if you take one of your spouse’s prescription sleeping pills, you are committing a crime.

Now, your spouse is unlikely to report you to the police. But consider a sadly all-too-common scenario. Many elderly Collin County residents have trouble making ends meet, so they decide to resell some of their prescription medication pills to people suffering from drug addiction. Nobody wants to think of grandma as a drug dealer, but in the eyes of the law, that is what she is.

And it is not just the elderly. Prescription drug abuse is also common among teens and young adults in Texas. In many cases a teenager will take prescription drugs from their parents’ medicine cabinet and sell them at school. If you do not keep a careful watch over your own prescriptions, you may be surprised to find one day the police are at your door seeking to interview or even arrest your son or daughter.

Prescription Fraud

On the other end of the spectrum, many people are charged with fraudulently obtaining prescriptions. This is often the case with people who become addicted to pain medication. Some people are so desperate they steal their doctor’s prescription pad. In other cases, an addict may go obtain multiple prescriptions from different doctors or they may try and alter a legitimate prescription to increase the quantity or dosage.

All of these acts are considered criminal offenses. Texas law enforcement has become especially aggressive in recent years in pursuing prescription drug fraud related to opioids (pain relievers), sedatives and antidepressants, and stimulants. Some of the more commonly abused prescription drugs include Buprenorphine, Oxycodone, Oxycontin, Ritalin, Valium, Vicodin, and Xanax.

What Should I Do If I’m Charged with a Prescription Drug Crime in Collin County?

If you are charged with a prescription drug crime, the important thing is not to panic or try to deal with law enforcement by yourself. You need to contact an experienced Collin County drug crimes lawyer who knows how to deal with cases like yours. Call Rosenthal & Wadas today at 972-369-0577 to schedule a consultation with one of our qualified Collin County criminal defense attorneys.

Posted in Drug 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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