Jeremy Rosenthal
Kyle Therrian
Derk Wadas
Bo Kalabus
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What You Should Know About Open Carry In Texas

firearm-rosenthalwadas

Amidst a lot of controversy, Governor Greg Abbott signed Texas’s open carry bill into law in June 2015. It went into effect on January 1, 2016, but despite the long lead time to prepare for its implementation, there is a lot of misinformation making the rounds about what the bill allows and what it does not. It is extremely important to ensure you have your facts right – failure to do so could open you up to fines or even a federal firearms violation.

What Are The Requirements?
Open carry only applies to pistols and other handguns – no license is currently required to carry a longarm. The gun in question must be carried in a shoulder or belt holster – anything that touches the belt, such as a high leg holster, will generally meet this requirement. In order to open carry, you must be over the age of 21, and have no negatives on your criminal or psychological record. You must also complete a shooting course and a classroom test in order to be permitted to open carry.

It is important to remember that places designated in the past as gun free zones must remain gun free under this new law. Examples include schools, government buildings, secured areas such as airports and courtrooms, and anywhere else covered by city, state or federal law; if you bring or fire a gun in these places, there will be consequences. Possessing and/or discharging a firearm in a school zone, for example, may lead to as much as 5 years in prison.

What Are My Rights?
Since the law’s passage, some labor under the misapprehension that they may now carry a gun wherever they please, excepting gun-free zones. This is not currently the case, as businesses and other private properties are governed by their owners as long as they are in compliance with the law.

Many private businesses, such as HEB Grocery and Whataburger, are banning guns from their premises. They are legally permitted to do this, as long as they post signs to advise customers of this policy. The law permits businesses to allow open carry, but does not mandate that they must, and many restaurant owners and other shopkeepers have chosen to not allow guns in their establishment unless they are concealed, for a multitude of reasons including safety and ability to maintain smooth and fast service.

In terms of interactions with law enforcement, you should have no problem, but sometimes, things happen. Some police personnel will be uninformed regarding open carry, while others may ignore regulations entirely. If you are carrying a handgun and are approached by a police officer do as the officer tells you. Tell the officer you are carrying a weapon and have a license to do so. Do not reach for the weapon. Let the officer tell you what to do with the weapon.

Seek Experienced Legal Counsel from Our Collin County Criminal Defense Attorneys
If you charged with an open carry violation, it is best to consult a knowledgeable attorney. The Collin County criminal defense attorneys of Rosenthal & Wadas can assist you with your case as well as any federal firearm violations. Contact us today at 877-538-8640 (toll free) to set up a free initial consultation.

Posted in Uncategorized

Four Professionals Everyone Should Have On Speed-Dial

Speed Dial - Rosenthal & Wadas

The changing to a new year is often a time to reflect and make improvements to our lives and routines. However, we will all need help with some things in the new year, and those who can help us are worth their weight in gold. There are four professionals that everyone needs to ensure are readily available in our lives at all times.

  • The family doctor. Your health is one of the most important things to have, and having a doctor you trust can make a big difference in that regard. It matters to know that there is an educated professional with whom you can trust your and your family’s health, regardless of whether the problem is a cold or a cancer diagnosis.

  • Insurance agent. In this day and age, insurance for many different aspects of your life is not only suggested, but absolutely necessary. You may have more than one agent for each type of insurance – health, homeowners’, automobile, medical, life, et cetera – or you may have one who does it all, but it is imperative that you trust and feel comfortable with that person or those people. Insurance is a complex field, and if you are not careful, you may be taken advantage of if you do not have someone you can trust on call.

  • Auto mechanic. Cars break down, unfortunately – often at the time we can least afford it. Finding a good mechanic can have long-term advantages for work and personal life both – after all, the less time you spend in the shop, the more time you can spend with your family or on the job. Mechanics are one of the most notorious professions in terms of unethical behavior and good ones are worth hanging onto when you find them.

  • Defense attorney. Attorneys are like mechanics in that one never believes they will need any services until too late. However, when an attorney is called for, usually it is in a situation that involves a quick, appropriate response. Whether it turns out to be you or a loved one who requires the services of a good lawyer, doing one’s due diligence to find a good one before it becomes necessary is very helpful.

If you do turn out to require the services of a good attorney, consider the Fairview, Texas criminal defense attorneys of Rosenthal & Wadas. We have been in business for many years, and we boast one of the only firms in the state with two Board Certified attorneys. Less than 1 percent of Texas attorneys are certified, but Rosenthal & Wadas works hard to ensure that we provide our clients with the best information possible. We want to be the number you keep in your phone, so we can help you or your loved ones with any legal trouble you may encounter.

Give us a chance to become the number you keep for a rainy day. Contact our Collin County criminal defense attorneys at 877-538-8640 (toll free) to set up an appointment. We serve Collin County and the surrounding areas.

Posted in Uncategorized

Minor In Possession of Alcohol In Texas

Rosenthal&Wadas - MinorPossessionofAlcohol

In this day and age, alcohol culture is a part of American life. However, there must be limits, and the law tries to enforce them. Most people agree that minors’ access to alcohol needs to be limited. As such, minor in possession laws are very often rigorously enforced. It is important to understand what exactly is encompassed by them, however, lest you unwittingly run afoul of the law.

Relevant Statutes

The law in Texas is fairly simple, stating explicitly that it is against the law for someone under the age of 21 to “buy, possess or consume” alcohol, as well as to attempt to perform any of those actions. Adults may also not buy or sell alcohol for minors.

There are four exceptions to Texas law, however, where minors are permitted to possess, purchase or consume alcohol. They are:

  • Consuming in the presence of, and with the consent of, their parent or guardian (or, in rare cases, their adult spouse);
  • Possessing or handling alcohol during the minor’s scope of employment (for example, as a waitress);
  • Purchasing or consuming alcohol while assisting law enforcement in enforcement of the minor in possession laws, such as during a sting operation; and
  • Not an exception, per se, but a minor may not be found liable for violation of the laws if they are calling for emergency help for an overdose victim, as long as they were the one to call for help, and remained on the scene to help medical personnel.

A Note About Deferred Disposition

Sometimes, judges may choose to sentence a minor to community service or to undergo an alcohol awareness program, in lieu of a fine or jail time, under a program referred to in Texas as deferred disposition (also known as  deferred adjudication). Deferred disposition can apply to anyone, but is most often applied to minors or very young adults. The rationale is that these defendants have perhaps the most to lose by having any kind of criminal record, and thus may be given a second chance of sorts.  Another caveat to be aware of is that with a deferred disposition, the defendant minor is legally entitled to attempt having their record expunged.

An Experienced Allen, Texas DWI Lawyer Can Help

Being convicted of anything, even a misdemeanor, as a minor can be terrifying. Having an understanding and knowledgeable Texas criminal defense attorney on your side can save a lot of time and trouble. The Frisco DWI attorneys at Rosenthal & Wadas are happy to help you work through what can be a difficult and confusing time. Give us a call today at 877-538-8640 (toll free) to set up an appointment.

Posted in DWI

Is Your Criminal Record Keeping You From Working?

Criminal Record-Rosenthal & Wadas

Sometimes, we make mistakes. The most severe can result in jail or prison time, However, even after you have served your time, problems may still arise, most often when trying to find a job. Rightly or wrongly, many employers turn down those with criminal records, fearing dishonesty or worse. However, some procedures do exist that can either amend your record, or at the very least, increase your chances of landing an interview and then a job. Very often, good criminal defense lawyers may be able to assist.

Background Checks in Texas

Most employers conduct criminal background checks, especially those hiring for jobs that require honesty and/or good character. Examples of this include nursing or nurses’ aides, any job in the gambling sector, and any job involving child care. Still, the background check can be a quick way for employers to quickly eliminate candidates they find unsuitable, and it is up to you to ensure you do not fall into that category.

In Texas, background checks usually consist of public record information, available via the Department of Public Safety. In most cases, there is a rule which permits a prospective employer to go back up to seven years in your criminal history. However, some jobs require deeper scrutiny – for example, the Texas Business & Commerce Code allows employers to investigate back to an applicant’s 18th birthday if the job in question will pay more than $75,000 per year. Other exceptions exist as well. However, there are certain things an employer cannot find out, even when investigating you. For example, any conviction or plea that has been expunged or sealed (records of minors are often sealed) may not be viewed by prospective employers.

Handling the Interview

Every job interview is different, but if you go into yours prepared, you have a higher chance of being hired, even with a record. There are several ways you can increase your odds. Some include:

  • Try and anticipate the questions that will be asked. Depending on the type of job, the questions at the interview may be tailored in a way where you can truthfully answer in a way more likely to get you hired. For example, if a prospective employer asks if you have ever been convicted of a felony, and you have not – but you have filed a plea of no contest, you may answer truthfully that no, you have not been convicted.
  • Offer information up front, if possible. An employer will appreciate having the amount of work they must do decreased, and you will be in control of how your story is told.
  • Always tell the truth! If an employer discovers you have lied, you will not be hired, and there is a high likelihood that you would be terminated for being untruthful even if you get the job. Also, Texas law carries criminal penalties for lying about one’s criminal record to obtain a job in some fields, such as child care or any kind of governmental work.

Seek Help From McKinney, Texas Criminal Defense Attorneys

If you are trying to find legitimate work with a conviction on your record, the road can be difficult. Consulting with a Frisco criminal defense attorney can help you understand your options. The experienced criminal defense lawyers at the firm of Rosenthal & Wadas may be able to obtain an Order expunging or sealing your criminal record, or provide other information and help that can put you in a better position. Contact our office today at 877-538-8640 (toll free) or via our website to discuss your options.

Posted in Criminal Defense

7 Questions To Ask Before Hiring A Criminal Defense Attorney

Judge Gavel and Law Books

If you are in a position to require the services of a criminal defense lawyer, it is more important than normal that you find one with whom you can speak frankly and be honest. Hiring the first criminal defense attorney you encounter can lead to serious consequences. There are questions that it is in your best interest to ask before hiring an attorney.

  1. Have you been handling criminal defense cases for long? While a lack of experience should not necessarily be enough to disqualify a skilled attorney, it is generally better to look for someone who has been through cases similar to yours before. This is especially true if the crime you are charged with carries jail time. Sometimes, attorneys will begin their legal careers as prosecutors, and then switch sides after a period of learning and acquiring a proven track record as a litigator.

  1. How many trials have you handled? What about jury trials? An attorney may have experience with criminal law, but lack the expertise to put it into practice in an actual trial. Having some hands-on experience can make a difference. It is also a good idea to ask about specifically jury trials – in Texas, those charged with petty offenses are not entitled to a jury trial. However, the dynamic of a bench trial is very different than that of a jury trial, and a good attorney will have experienced both.

  1. How much of your practice is criminal defense work? This also ties back in with experience. Someone who has merely studied criminal law, as opposed to someone who has dealt with it on a day to day basis, is going to approach a case very differently than someone who makes it part of their life.

  1. Are you familiar with the offense I have been charged with? Even a practiced criminal lawyer can stand to learn something new – but it is generally better if your case is not being used as someone’s classroom. For example, someone who specializes in drug offenses may have difficulty handling an attempted robbery claim.

  1. Will you be handling my case, or will you have an ‘associate’ take over? While law firms are routinely busy to the point where associates or paralegals may handle much of the paperwork, you still have the right to insist that you have an attorney beside you in court who knows the details of your case, and who has been well informed from the beginning. Unethical firms are prone to bait and switch, luring in clients with promises of a well-known or experienced attorney handling their case, and then farming it out to an associate.

  1. Will you communicate with me about my case and its progress? There is an unfortunate trend among many professionals to not keep in contact with a client, or to only update them infrequently, regardless of what news has come to pass in their case. An ethical attorney will provide prompt updates when something happens, rather than leave you hanging for weeks or months.

  1. What are your fees? Do you offer payment plans? While an extremely cheap attorney is generally a proverbial red flag – usually, one gets what one pays for – it is important to ensure that your attorney will accommodate you if you are low on funds. While criminal defense attorneys may not take cases on a contingency basis, they will usually work with you to reach an agreement that is favorable to you both regarding payment terms.

If you or someone you love has been charged with a crime in Collin County or its environs, you need a dedicated Allen criminal defense attorney who will fight for your interests. The Collin County DWI lawyers at Rosenthal & Wadas understand that right now, confusion is likely the overwhelming emotion for you and yours. We will help you cut through the fog and work hard for the best possible outcome. Contact our Collin County DWI lawyers today at 877-538-8640 (toll free) to set up an appointment.

Posted in Criminal Defense

Social Media & Criminal Proceedings: What Is Evidence?

electronicdevices

Today’s technology can be both a blessing and a curse. Most Americans use social media to some extent, but many are unaware that nothing they post is ever entirely private. While information may be hidden from their family and friends, in certain circumstances it can be accessed by authorities. People should generally practice a modicum of discretion in their social media postings, but if you are involved in the legal system, your information may be able to be used against you, depending on your location.

The Stored Communications Act & Government Action

It is not a new phenomenon to have the United States government mining social media for relevant data when it becomes necessary. While current law allows social media companies to turn over what is referred to as “non-content” information without a warrant (such as log files and information on an e-mail’s recipient), the Stored Communications Act (SCA), passed in 1986, grants the same level of protection of privacy under the Fourth Amendment to e-mails and other electronic communications and information as other communications enjoy. In other words, it raises the burden that a person or entity must meet before being able to view private communications.

Governmental entities (which includes prosecutors’ offices) may obtain non-content information without a warrant, requiring only a subpoena or court order. To obtain more sensitive user information, one of two procedures must be followed, depending how long the information in question has been in the storage of the service provider. If the information has been created and stored for 180 days or less, they must file a warrant. If the relevant information has been stored for longer, there are three options by which it may be potentially obtained:

  • Obtain a warrant in the usual fashion of criminal discovery;
  • File an administrative subpoena; or
  • Obtain a court order under section (d) of the SCA.

Generally, the privacy of electronic communications would be somewhat in doubt – numerous courts have held that internet service providers are analogous to telephone companies or post offices, and as such, e-mails should have the same protection as telephone records or mail, but no law has been codified to say so as of this writing. This is important because if a criminal defendant has a reasonable expectation of privacy in their social media accounts, they may not be implicated by them by virtue of the Fourth Amendment protection against unlawful searches and seizure.

Defense Counsel & Social Media

Given all the tools at the government (and prosecutor)’s disposal, defense counsel is very often at a disadvantage in terms of how to obtain evidence via social media. Professional ethics prohibit co-opting those with access to relevant social media accounts, as well as creating a fake persona to “friend” the account on one’s own. Also, third-party subpoenas are much more difficult to get, as private entities such as Facebook have more leeway to deny them if they do not come from the government. In certain instances, however, defense attorneys have managed to get social media evidence admitted into the record through ingenious or informal means, such as simply asking a witness for their relevant information. The only caveat in such instances is that admissibility is a concern – the easy fabrication of social media posts can lead to evidence being invalidated if the chain of custody is not airtight.

In addition to the federal regulations covering this topic, some states have rules on social media privacy that can cover use in criminal proceedings. Texas does not have laws of this nature; cybercrime laws exist, but as of this writing, no state-specific social media privacy laws exist.

Contact An Experienced Allen Criminal Defense Attorney

If you have been charged with a crime in Collin County or the surrounding area, you need an attorney who understands the law and your rights. The skilled McKinney criminal defense lawyers at Rosenthal & Wadas, PLLC will fight hard for your day in court, and ensure that your rights are respected. Contact our Collin County DWI lawyers via our website or toll free at 877-538-8640 to set up an appointment.

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Posted in Federal Criminal Defense

Texas Criminal Laws That Took Effect in 2015

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This past summer, the 84th Texas Legislature put a number of new criminal laws on the books that took effect in September of 2015. In fact, Texas will see more than 1,200 new laws this year that may have an effect on criminal cases throughout the state. Although many of these new laws are quite specific—and thus may not impact a particularly large number of Texas residents—it is important to understand some of the new key measures that could influence criminal defense proceedings.

While we cannot discuss all of the new laws in depth, we want to point out a few that may be especially relevant for residents of Collin County, Texas. These new laws deal with various issues, from tougher penalties for drug offenses to new search and seizure requirements. We should turn to some of the specifics of these new laws so that you can assess how they might impact your case.

New Texas Criminal Laws in Detail
Significant changes have been made to a number of criminal laws in Texas this year that may play significant roles in criminal defense matters. Some of the new laws:

  • Search warrant requirement for cellular phones: under the terms of HB 1396, law enforcement officers will have to obtain a search warrant in order to search the cell phone or other wireless communication device of a person who has been arrested. This new language concerning search warrants and cell phones will amend Article 18.02(a) of the Texas Code of Criminal Procedure. In other words, the police must now obtain a search warrant in order to search a smart phone. As with other laws concerning search and seizure, however, there are exceptions that an experienced Plano criminal defense attorney can discuss with you.
  • Texas Penal Code 46.03 was amended to create an affirmative defense for the inadvertent bringing of a weapon into the secure area of an airport.
  • 32.54 of the Penal Code was amended to increase the penalties for “Fraudulent or Fictitious Military Record.
  • The legislature also added a new section to the Obstruction or Retaliation statute which criminalizes the act of posting the home address or telephone number of a public servant with the intent to “harm.” Essentially this act purports to criminalize so called “doxing” or the public posting of identity of police or other public officials. This statute may face a first amendment challenge at some point in the future on the ground that it criminalizes protected speech.
  • Rule of Lenity codification: also under HB 1396, Section 311.035 of the Government Code now requires that “a statute or rule that creates or defines a criminal offense or penalty shall be construed in favor of the actor if any part of the statute or rule is ambiguous on its face or as applied to the case.” In other words, if you are arrested for a criminal offense and the statute under which you are charged is ambiguous, the law requires that the statute be construed in your favor. This applies to ambiguities that may exist both in an element of the offense and in the penalty imposed for the offense.
  • SB 1317 attempted, among other things, to restore the former Improper Photography or Visual Recording that was previously struck down by the Texas Court of Criminal Appeals as a First Amendment violation. It is possible that the revised statute may also be the subject of a First Amendment challenge in the future, but that remains to be seen.
  • Under HB 1424, a narrow category of drug offense with prior convictions will face harsher punishments.

Contact a Collin County Criminal Defense Attorney
If you were charged with a criminal offense in Collin County, it is important to seek experienced legal representation. Contact Rosenthal & Wadas today at 972 369 0577 for a consultation.

TexasBarToday

Posted in Uncategorized

What To Do When CPS Shows Up At Your Door?

CPS

Child abuse is a serious accusation and a serious crime. However, in this day and age, child abuse accusations are sadly made more often than they should be, sometimes as weapons in a nasty divorce or custody case. Whatever the reason, if Child Protective Services (CPS) shows up at your door, there are things you must do, and there are actions you must absolutely avoid.

DO: Take it seriously. CPS is required to investigate all allegations made when abuse is alleged to have been committed by someone who is “responsible for a child’s care, custody or welfare.” They are duty bound to ensure that no abuse is taking place, and if there is, to act accordingly. Laughing off the allegations creates a problematic impression on CPS investigators, as you will be seen to not respect their authority.

DO: Know your rights. It is not uncommon that some CPS workers stretch the truth when informing you of your rights while conducting an interview. You are entitled to a hearing if facing accusations of abuse. You are entitled to an attorney appointed for you (if you cannot afford one) if the Department of Family & Protective Services (DFPS) initiates any action to attempt to remove your children from the home. You are entitled to refuse entry to your home if CPS workers have no warrant or court order. There are many other rights that remain yours, even if you fall under suspicion.

DON’T: Lose your composure. While it is understandable that you might do so at being accused of a heinous crime, it is also understandable that guilty people might vehemently protest their innocence. CPS workers have seen so many of both that it can be difficult in the extreme for them to tell the difference.

DO: Cover your bases. If your child will be asked to submit to a medical exam, ensure that your own doctor performs one as well. The standard used by DFPS investigators is a “preponderance of the evidence” – that is, if they can show by a preponderance of the evidence that abuse occurred, you will likely be found guilty – and as such, the more evidence you can provide, from sources you know are trustworthy, the better off you will likely be.

DON’T: Take any kind of deal or admit guilt if you are not guilty. You may think that taking a plea deal, so to speak, would be to your advantage, as it is to some criminals’ advantage in that it tends to get them a shorter sentence. That is simply not how CPS operates; if you admit to any kind of behavior that could be considered child abuse, you will be treated from then on as a criminal and your children will likely be lost to you.

DO: Consult An Experienced Attorney

If you are being accused of child abuse, neglect or molestation of a child , the best things you can do for yourself is to engage a competent attorney with experience in dealing with CPS. The Collin County CPS attorneys at Rosenthal & Wadas are a full service legal defense team and can assist you with all legal matters related to a CPS investigation. Contact us at 972-369-0577 today to discuss your options with one of our attorneys.

 

Posted in Uncategorized

Has Your Child Been Accused of Bullying?

BullyingImage

If you have been following the news in Texas and across the country, you know that school bullying has become a serious issue. To be sure, the Huffington Post has reported on numerous bullying lawsuits filed by the parents of school-age kids, and some of those have resulted in costly settlements. But in addition to civil suits, your child could be facing serious criminal penalties. If your child has been accused of bullying, it is important to speak with an experienced Collin County criminal defense attorney as soon as possible. Bullying is taken very seriously in Texas, and an advocate at Rosenthal & Wadas, PLLC can get started on your case today.

Recent Bullying Cases in North Texas

What kinds of bullying cases have been prominent in the North Texas area? In particular, you might remember a CNN News report on a Cleburne, Texas case in which parents filed a lawsuit against school officials contending that their son’s suicide was the result of intense bullying. In that claim, the parents argued that students and school officials “observed several explicit act of bullying, including [their child] being thrown into a trash can easily a few times a week, but did nothing to stop it.”

Specifically, the parents explained that their son, 13-year-old Jon Carmichael, “was placed upside down in a toilet bowl, and had his head flushed several times, at each occasion.” Just prior to his suicide, the child “was stripped nude, tied up again and placed into a trashcan.” This incident is not the only one that has made news in the greater Dallas-Fort Worth area. To be sure, a recent article in The Dallas Morning News emphasized that cyberbullying has become a serious issue in local schools. Just last April, a McKinney teenager, Raymond Howell, committed suicide. His family cited cyberbullying as the cause, according to another report from The Dallas Morning News.

Given the shock of Howell’s death to Collin County parents and teens alike, schools in the area are beginning to crack down on bullying. Under Texas law, school districts are required to adopt policies against bullying. And if school officials do not take particular steps, they may be open to a lawsuit. But in addition, the parents of students accused of doing the bullying also may find themselves at the center of a criminal investigation.

Texas Charges and Penalties for Bullying

How is bullying defined in Texas? Under Section 37.0832 of the Texas Education Code, bullying means “engaging in written or verbal expression, expression through electronic means, or physical conduct that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district” that does one of the following:

  • Has or will have the effect of “physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property”; or
  • Is “sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student.”

If your student has been accused or bullying, it is essential that you understand your child could face criminal penalties and a criminal record. To be sure, you could be dealing with issues that reach far beyond a financial civil lawsuit if another student has accused your son or daughter of bullying. You need an aggressive Collin County criminal defense attorney on your side. Contact Rosenthal & Wadas today to learn more about how our McKinney, Texas criminal defense attorneys can assist with your case.

Posted in Federal Criminal Defense

Is a Polygraph Test Admissible as Evidence?

JeffersonPolygraphReproductionFrontView

In nearly all cases, the answer is no. Despite the widespread use of polygraph tests in criminal investigations, these tests cannot be used to make a definitive determination that an individual is lying. What a polygraph does is measure minute physiological changes that the subject experiences while answering questions. These physiological changes can include a change in heart rate, increased sweating, and a rise in blood pressure. Although these can indicate that an individual is not telling the truth, they can also indicate nervousness or anxiety. Many factors can play into an individual’s polygraph test results, such as his or her emotional state at the time of testing, the individual performing the testing, and the way the questions are worded. Because of all the variables present that can alter a suspect’s results, most courts agree that polygraph tests are scientifically inaccurate. If you are a suspect in a criminal investigation and you are asked to take a polygraph test, do not take the test until you have discussed it with an experienced criminal defense attorney. You are under no legal obligation to take the test.

Should I Take a Polygraph Test?
You might think that taking a polygraph test will prove your innocence. Although volunteering to take a polygraph can be a tempting prospect, do not do it without consulting an experienced criminal defense attorney. There are certain very specific situations in which an attorney may recommend that a client submit to a polygraph exam for strategic reasons. A competent and experienced lawyer can advise you about the considerations involved. A polygraph can complicate your case in a few different ways. If you “pass” the test, law enforcement could potentially assume that you somehow “beat” the test. If you “fail” the test, meaning that the test picked up on physiological changes that could be correlated with untruthful answers, this can make you appear to be guilty and make you a target for further scrutiny. Even if a police officer were to tell you that you should take a polygraph test, you are never required to do so. Since 1990, polygraph test results have been inadmissible in all Texas criminal courts with very rare exceptions. Your attorney can help you determine whether taking a polygraph test is a productive choice for you. And if your lawyer sends you for a polygraph, the results can remain confidential. A failed polygraph is not an automatic conviction. Likewise, “passing” a polygraph test does not mean that you can not be found guilty later.

McKinney, Texas Criminal Defense Attorneys
If you are involved in a criminal investigation in any way, be proactive and start working with a Collin County criminal defense attorney as soon as possible. Call Rosenthal & Wadas, PLLC today at 972-369-0577 to begin working with a member of our firm. Our team of criminal defense attorneys can help you with your case by providing you with the legal counsel and representation you need. Do not wait to begin working on your case with our firm.

TexasBarToday

Posted in Criminal Defense

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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