Jeremy Rosenthal
Kyle Therrian
Derk Wadas
Ryan Kreck
Bo Kalabus

Defense for DWI in Collin County


It is a sad fact that our great state of Texas leads the nation in drunk driving fatalities. Driving while intoxicated (DWI) is a serious offense that carries both criminal and civil penalties. But just because you’re arrested doesn’t mean you should plead guilty. An experienced DWI defense attorney can help have the charges against you reduced or dismissed.

Texas DWI Laws

A driver can be arrested for a DWI if his blood or breath alcohol concentration (BAC) is 0.08 or higher. A driver can also be arrested, regardless of his BAC, if his driving is impaired due to alcohol or other drugs, such as marijuana, cocaine, or even prescription or over-the-counter medications.

Contrary to what you may believe, if you are pulled over for a suspected DWI you do have the right to refuse to submit to a breathalyzer or blood test. However, the refusal is not without consequences – there is the potential that your license could be suspended for up to 180 days for a first DWI. If you refused the breathalyzer or blood test, or if you took it and failed, we will immediately request an Administrative License Revocation hearing. If requested within 15 days of arrest, your license will be valid until a decision is entered at the hearing. Depending on the outcome of the hearing, your license may or may not be suspended.

Fighting a Blood or Breathalyzer Test

If the results of the blood or breathalyzer test show that you had a BAC of 0.08 or higher, it does not mean your case is over. There are many factors that could cause the results of the blood or breathalyzer test to be tossed out of court. These may include:

  • Officer’s failure to have reasonable suspicion to pull you over;
  • Faulty administration of the breathalyzer test;
  • Errors in the testing procedure or reading of the results;
  • Medical conditions, such as hypoglycemia, diabetes or heart disease, or even being on a low-carb diet, which increase acetone levels in your breath and may result in a false breathalyzer result, or;
  • Anxiety (a common reaction to being pulled over), which may also increase acetone levels in your blood.

Recognized Experience in Texas DWI Defense

The Collin County DWI attorneys at Rosenthal & Wadas, PLLC utilize a “think tank” approach to their defense of all DWI charges. Throughout the lifetime of your case, beginning at arrest and ending when a verdict is reached, up to five of our experienced DWI attorneys will collaborate on your case to ensure that no possible defense strategy is overlooked. Every one of our DWI attorneys is certified by the National College for DUI Defense, an honor bestowed on only a chosen few who have proven vast skill and superior knowledge in DWI defense.

Collin County DWI Defense Attorneys Fighting for You

If you have been arrested and charged with a DWI, do not delay in contacting a Collin County DWI attorney at Rosenthal & Wadas, PLLC. There are many actions that can be taken to preserve your ability to drive and to get the results of a blood or breathalyzer test thrown out, but time is of the essence. If you live Collin County or the surrounding area, call our office today at 877.538.8640, or complete our online web form, to schedule your free initial consultation.


Posted in DWI

How Does an 11.07 Writ of Habeas Help a Convicted Person?

I recently answered a similar question in the context of a murder conviction where an individual was sentenced to 25 years imprisonment. The question also raised issues about the defendant being a first-time offender, having inadequate representation, false witness testimony and a prosecution based upon circumstantial evidence. In answering this specific question, I realized that these issues actually apply to a wide range of individuals seeking what is referred to as “post-conviction relief” in the form of a Writ of Habeas Corpus under Texas Code of Criminal Procedure Article 11.07. Below is the analysis of the specific questions raised.

11.07 refers to a post-conviction remedy under the Texas Code of Criminal Procedure Section 11.07 known as a “writ of habeas corpus.” There is not deadline to file an 11.07 writ of habeas corpus, but our courts say that delay in requesting 11.07 relief can have the effect of watering down an issue. As a rule of thumb, 11.07 relief is limited to issues which could not be raised during the course of the original representation. Let me address the issues you raise below.

First-time offender. Typically, this is what is referred to as a “punishment issue.” A judge or jury’s determination as to what weight to give a defendant’s clean record in punishment is almost impossible to change on appeal. Presumably, this was factored-in when determining a 25 year sentence.

False statements. These fall into two categories: (1) false statements which were believed to be false during trial and for which the defense had ample opportunity to confront through cross-examination, and (2) false statements which were learned by all to be false after the trial because a witness recanted. Generally, the second scenario would be a potentially fruitful area to investigate on an 11.07 writ of habeas corpus.

Circumstantial evidence. Circumstantial evidence is sufficient evidence to obtain a conviction. If a judge or jury determines that it adds up to proof beyond a reasonable doubt, this is very hard to contest through the 11.07 writ of habeas corpus process

Inadequate representation. This is one of the most common forms of 11.07 writ of habeas corpus, also known as “ineffective assistance of counsel.” If there was something that the attorney at trial should have done but didn’t and it can be shown that it affected the outcome of the guilt/innocence or punishment, this would be a good 11.07 issue.

You should consult with an attorney. The points made above are not absolutes. Many times the only way to know if there is an 11.07 Writ of Habeas issue is to hire an attorney to order a transcript and take a look under the hood.

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Posted in Criminal Defense

Criminal Appeals: Five Things to Know

Criminal appeals are complex. It would be impossible to distill the entirety of criminal appellate practice into five bullet points. On the other hand, some aspects of criminal appeals are more paramount than others–especially when it comes to determining whether to set aside some time to meet and discuss your case with a criminal appellate attorney. The list below is intended as a starting point in answering the question “do I or do I not exercise my right to an appeal?” 

Note: this discussion relates to direct criminal acriminal appealsppeals. In general, direct criminal appeals raise errors committed in the trial court. For a discussion of appeals raising matters that were later discovered or never brought to the trial judge’s attention, check back later for a discussion on “writs of habeas corpus.”

  1. What is the Deadline? Deadlines are the unstoppable force in any area of law. The right to an appeal is a waivable right. Texas Rules of Appellate Procedure Section 26.2 provides that an appeal must be “perfected” (requested) within 30 days after the court imposes or suspends a sentence in open court or enters an appealable order.  Alternatively, if a defendant files a motion requesting a new trial from the trial judge, the time to perfect appeal becomes 90 days. Barring an extraordinary exception, the right to appeal is waived if not requested within one of these timeframes.
  2. What Issues Can I raise on Appeal? An appeal is not an opportunity to try the case over again. Appellate courts give great deference to a judge or jury’s findings with regard to which facts are true and which facts are not true. An appellate court will entertain a dispute about the facts only if no reasonable fact finder could have found the essential elements of the offense beyond a reasonable doubt—this is rare. The most common appellate issues are disputes about the judge’s rulings which affected the outcome of the case. In particular, a judge’s ruling on the admissibility of evidence or on a motion to suppress evidence are among the most common issues raised on direct appeal.
  3. What are the Costs? Costs are distinguished from attorney’s fees. An attorney’s fee will vary depending upon the complexity of the case and anticipated legal work required to present an appeal. Generally, costs are charges incurred for any other purpose required to effectuate the appeal. Although the appellate court charges nothing to file an appeal, the rules of appellate procedure require a submission of the clerk’s record and the court reporter’s record. The clerk and the reporter charge for preparation of these records, absent a finding by the trial court that the individual is incapable of making such payment.
  4. How Long Does it Take Before the Court of Appeals Issues a Decision? Once an appeal is “perfected” (requested) it can typically take anywhere from three to nine months before the appellate court has everything it needs to start considering the appeal (transcript, clerk’s record, appellant’s brief, appellee’s brief). Once the court receives everything necessary to consider the appeal, a quick turn-around on issuing an appellate opinion would be six months. A number of factors outside the control of attorneys can cause this to take even longer, including whether the appellate court grants oral argument on the appeal.
  5. What Happens if the Court of Appeals Agrees with my Appeal? Once the court of appeals has considered an appeal, they will issue an “opinion.” (a written statement of the facts, law and court’s analysis). If the appellate court agrees with the issues raised on appeal, they can (1) reverse and render a judgment of acquittal, (2) reverse and remand. When the court reverses and renders an acquittal, it has determined that an error occurred and the law requires an acquittal. When the court reverses and remands, it states what the trial court’s error was and sends the case back to the trial court for the case to be resolved by the trial court in a manner consistent with the appellate court’s interpretation of the law. Usually, a reverse and remand decision is mere a formality after winning.



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What Happens at a Juvenile Detention Hearing?

If your child has been arrested, you have probably been informed that he or she will be having a “juvenile detention hearing.”  If your child was arrested in Collin County this hearing will probably be held at the John R Roach Detention Center.  Under Chapter 54 of the Texas Family Code, your child is entitled to a detention hearing on the next working day following his or her arrest.  As long as you can be located, you are entitled to notice of this hearing, and anything your child says cannot be used against him or her at a later hearing or trial on the merits of the case (with the exception of if the child lies, in which case he could be prosecuted for perjury).  Unlike the adult system, at this point in the case, the judge is really just trying to get a feel for how the child is doing and what may be going on to trigger any sort of delinquent behavior, if any.

At this detention hearing, the judge will determine whether your child will go home (either to a parent or another relative who has agreed to take him) or be held at the detention center for another ten (10) working days until their next hearing date.  At the detention hearing, the judge will take into account five circumstances in determining whether or not to release your child:

  • Whether the child is likely to abscond or be removed from the jurisdiction of the court;
  • Whether suitable supervision, care of protection for the child is not being provided;
  • Whether there is a parent, guardian, or custodian who can return the child to court;
  • Whether the child may be dangerous to himself or others; and
  • Whether the child has been previously found to be delinquent.

If any one of these circumstances is present, the judge may continue detention for another ten (10) days.  If the judge decides to keep your child in custody, very often during the following ten (10) days, the probation officer, guardian ad litem, and others will conduct home studies for suggested placements for the child.  Sometimes, psychological and/or psychiatric evaluations are also ordered.  Typically a supervision plan will need to be in place before the child is released.

If the judge does order that your child is held for 10 more days, don’t panic.  It is not an indication of how good or bad the case is against your child or how severe the crime is necessarily, or even that your child would be in the juvenile detention facility long-term.  It is usually just a chance for probation to get a supervision plan in place that is acceptable to all parties involved.  This may mean that your child can come home to you with an adjustment in supervision, or it could mean that your child would stay with a trusted relative.  Often, if a placement is secured before the 10 business days is up, the hearing may be held sooner, so as to release the child as soon as possible.

A juvenile defense attorney can provide helpful advice throughout this process.

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Sealing Juvenile Records

What is “sealing” a juvenile record?

Under Texas Family Code Chapter 58, sealing your juvenile record releases you from the requirement that you disclose your involvement in your juvenile proceedings to any employer, state licensing, or anyone else.

What happens if my record is not sealed?

If you do not have your record sealed anyone with a “legitimate interest” may request them.  This includes potential employers, educational institutions, and future landlords.  Because these people may see your record if it is not sealed, it is important that you make sure your records are sealed if you are eligible.

Is sealing of records self-executing?

No.  Juvenile records do not seal themselves.

What about automatic restriction of access to records?

In some situations, where a child has not been convicted of a new offense since he turned 17, his juvenile records will automatically be restricted once he turns 21 years old.  This is not as powerful as an actual sealing of the records, but it does restrict the access of the records such that only government agencies are able to look at them (i.e., for purposes of investigation).  It is important to note that automatic restriction of access to records does not happen in certain types of cases—for example, gang-related cases, cases which require a juvenile to register as a sex offender, or habitual felony conduct.

How does the sealing process work?

First your attorney must file an Application for Sealing of Files and Records, which includes information about your juvenile case(s).  At that point a judge will determine if your records may be sealed, and he will issue an Order for the Sealing of Files and Records in your case.  After this, agencies with information about your arrest will seal those records.

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Sanction Levels for Juvenile Offenders

When your child gets arrested, you may hear about different “sanction levels.”  That is because the State of Texas has made an effort to make sure juveniles face consequences that are uniform across the state.  Judges are given a lot of “wiggle room” in determining punishment for different offenses, but these sanction levels provide a good reference for how other children in similar circumstances are punished.  Most judges in Texas are focused not only on punishment, but also on making sure your child gets the services that he or she needs to ensure that delinquent behavior doesn’t happen again.  Each sanction level is listed under Texas Family Code Chapter 59.

Sanction level one is the lowest sanction, usually given to those juveniles with runaway and truancy issues.  Sanction level one may require counseling for these offenses.

Sanction level two usually corresponds to certain Class A and Class B Misdemeanors (theft up to $1500/shoplifting, criminal mischief, and possession of marijuana, for example).  This level puts the juvenile in Deferred Prosecution for 3-6 months.  The deferred prosecution program is essentially where a juvenile is placed on probation in exchange for a dismissal of the case, as long as they do everything they are supposed to while on probation.

Sanction level three is used for more serious misdemeanors (those involving weapons), state jail felonies (burglary of a building, injury to a child, elderly or disabled person), and third degree felonies involving large amounts of marijuana, criminal mischief, or theft over $1500.  The recommended sanction at this level is formal probation for 6 months or more.

The fourth sanction level includes second degree felonies like arson, burglary of a home, sexual assault, aggravated assault, and possession of dangerous drugs.  Sanction level four supervision calls for 3-12 months in an extra-intensive probation, followed by regular probation.

Sanction level five is for arson with injuries, serious injury to a child, aggravated robbery or aggravated sexual assault.  This level involves 6-12 months in a “highly structured secure correctional facility,” after which the juvenile may go on standard probation.

Sanction level six is reserved for first degree felonies involving a weapon.  In this situation, the juvenile could be sent to the Texas Youth Commission, a juvenile correctional facility, for 9-24 months.

The highest sanction level—Sanction Level 7—are for the worst offenses in the Texas Juvenile Justice System.  This sanction level may include 1-10 years in the Texas Youth Commission, including the possibility of being transferred to the adult criminal justice system.  Alternatively, a judge or a jury may impose probation for up to 10 years.

Additionally, sanction levels two through seven may all include restitution for damages occurring as a result of the child’s actions, if any.  As I mentioned above, each child’s case will be viewed with an eye toward what will work best for him or her, but these are the sanction guidelines as they appear in the Texas Family Code.

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Will My Child Be Tried as an Adult?

Oftentimes we hear about cases where a juvenile will be “tried as an adult.”  What does that mean?  It means that the juvenile court, which would otherwise have had jurisdiction in the child’s case, waives its jurisdiction and transfers the case to an adult district court, where the child is treated as an adult.  Juveniles are only transferred to adult district court in the most serious of cases.

The law governing transfer hearings is Chapter 54 of the Texas Family Code.  Three things must be present for a juvenile to be transferred to adult court.  First the crime alleged must be a felony, the child must be at least 14 (in some cases, 15), and after a full investigation, the juvenile court must have determined “that there is probable cause to believe that the child…committed the offense alleged and that because of the seriousness of the offense” or the child’s background, adult criminal proceedings are necessary.

Some of the factors the judge will look at in determining whether or not to transfer the case to adult district court are whether the crime was against a person or property (the case is more likely to be transferred if the crime is against a person), the level of maturity of the child, the seriousness of the crime, the child’s prior criminal record (if any), prior attempts to rehabilitate the child, and the court’s beliefs about whether future rehabilitation would work.  Only in the most serious cases are juveniles transferred to the adult district court.

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What Do I Tell My Boss After an Arrest?

This is a very common question. We aren’t employment lawyers, but I think we can help.

Unfortunately there isn’t a one-sized fit-all answer because every job is different.

What I can say is Texas is an “at-will” state meaning in most cases an employer can terminate you for a good reason, for a bad reason, or for no reason at all. I point this out to underscore how powerless most people are to begin with when it comes to their jobs in the first place. So it’s possible that you can do everything right and still be shown the door. But experience tells me that most employers aren’t in a big hurry to get rid of good help.

Some jobs may require disclosure and some jobs may not. A good place to start is always your employee handbook or employee manual if you have one. Be sure you understand your company’s policy.

So What Do I Tell Them?

I can’t think of any rule, law or regulation — even if you work for the government — which requires you to disclose anything other than the arrest itself.  Even if you work for law enforcement they have internal-affairs mechanisms to deal with getting information from an accused (but that’s pretty well outside the scope of today’s discussion.)

Anytime you tell others about the facts of the case you are creating another witness who could come to court and testify against you.  My guess is disclosure of the arrest in and of itself would normally be sufficient to put your employer on notice of your situation.

Professional Licensing Bodies

Also if you have a license such as a medical license, nursing license, or commercial driver’s license (as examples), you may also want to make sure you know the rules for reporting arrests that the state may require. Even though your employer may not care, a professional licensing agency certainly may!

Familiarize Yourself with the Proper Terminology

You should understand the precise terminology that your company may be asking for as well as understand the precise status of your situation — whether it be arrest, indictment, pre-trial, or whatever the case may be.

It is my experience that most employers are fairly respectful of the judicial process and don’t require you to confess to keep your job. Usually they just want to keep their finger on the pulse of your case and aren’t interested in the details until your case is over, and sometimes they may not have much of an interest at all.

Obviously if your arrest is related to your workplace then it’s a completely different ballgame. In any event, if you have any questions about these issues you should consult an attorney that can help you in complying with your workplace policies.

Posted in Criminal Defense, Uncategorized

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

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

Top 3 Reasons to Refuse Field Sobriety Tests:

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

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

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

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

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

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

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

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

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

1.  Don’t Be the Bad Guy

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

2.  You’re Getting Arrested if You Completely Refuse

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

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

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

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

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

Posted in DWI

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

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

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

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

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

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

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

Posted in Uncategorized