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Don’t Let Your DWI Criminal Record be a Roadblock to Your New Year

Drunk Driving

This past legislative session (2017), Texas lawmakers from both sides of the aisle proposed legislation to help expand the opportunity to seal criminal convictions with an order of non-disclosure.

The new law HB 3016 allows a person convicted of nonviolent misdemeanors, including DWI’s, to petition the court for orders of nondisclosure under certain circumstances and alters some waiting periods.

HB 3016 also allows a person to petition for an order of nondisclosure of criminal history if that person was ineligible to receive an automatic order based solely on a judge’s affirmative finding that issuing such an order was not “in the best interest of justice.” If the offense was a misdemeanor punishable by a fine only an individual may petition for an order of nondisclosure immediately upon the date of completion of their sentence. However, if the misdemeanor was not punishable by fine only, they must wait until the second anniversary of the date of completing the sentence to petition.

What is an Order of Non-Disclosure?

Orders of non-disclosure “seal” a criminal record from the eyes of the general public and allow a person to deny such record in most situations. However, the offense will remain visible to law enforcement, state and federal authorities, and employers in government fields.

Importantly, having your record sealed does not, however, mean that the conviction is no longer on your record; it simply means that it is cleared from public view. Certain agencies may still be able to access the conviction, such as law enforcement agencies, or certain professional licensing agencies like the Texas Bar.

Sealing your record is an important tool because it allows those who have made mistakes in the past to have a second chance. Being able to seal your criminal record makes it easier to get a job, apply for housing, or applying for certain loans that they may have otherwise been prevented from receiving.

Who qualifies for a Non-disclosure under the new law?

A person may petition to have a DWI sealed only if they:

  • The Driving While Intoxicated conviction must be a first offense
  • The alcohol concentration must be below .15 (breath or blood)
  • There must have been no automobile accident
  • The conviction must have resulted in community supervision (probation) as opposed to a jail sentence
  • The person seeking Nondisclosure of the DWI conviction must have never previously been convicted or placed on deferred for any offense other than a traffic citation

How soon can you file a Non-Disclosure under the new law?

  • You must wait two years after your successful discharge from community supervision before you may apply to seal the record if you had a Deep Lung Device (DLD) installed in your car as a condition of supervision before you may apply.
  • You must wait five years after your successful discharge from community supervision before you may apply to seal the record if you did not have a DLD installed in your car as a condition of community supervision.

How can the new law help you or a loved one?

HB 3016 makes it easier for persons with certain low-level nonviolent offenses, particularly DWI’s, to obtain employment and become productive members of society. If you or someone you know is a first-time DWI offender and is interested in applying for nondisclosure, contact Rosenthal & Wadas and we can help you determine if you are eligible. We are happy to provide a free consultation to walk you through the steps for sealing your record. Call our office today at 972-369-0577.

Posted in DWI

Kyle Therrian Named to 2018 ‘Best Lawyers Under 40 List’ by D Magazine

Kyle Photo For Blog Post

D Magazine has selected Kyle Therrian to the 2018 edition of Best Lawyers Under 40, a list that recognizes outstanding young attorneys in North Texas.

Kyle focuses his practice on representing individuals in both pending criminal cases and in criminal appeals. This is a dual-threat approach to criminal law. As an attorney who handles criminal appeals, Kyle has a reputation in the trial courts as an attorney who will take his cases to the next level when necessary. This provides value to clients with pending criminal matters who are hoping to convince a prosecutor for a favorable outcome or persuade a judge that their rights were violated.

“As a firm, Rosenthal & Wadas, strives to positively impact the legal industry in all of the communities in which we practice,” says Derk Wadas. “We are very grateful that our peers and the editors at D Magazine recognized Kyle Therrian for this honor.”

Therrian is among seven criminal defense attorneys on the Best Lawyers Under 40 list, selected from peer nominations and a review by a blue-ribbon panel of lawyers and D Magazine editors. The full list is available in the January 2018 issue of D Magazine.

Posted in Uncategorized

Firearm Discovered at TSA Checkpoint – What Now?

Firearm

Gun laws can be confusing. Every state has its own laws, and there are federal laws that come into play as well. Plus, some state laws are not transferable everywhere, so it’s not uncommon for people to face weapons offenses even though they believe that are within their legal rights.

Most states—like Texas—have concealed carry or license to carry laws. This allows residents to take a handgun with them in public places except for secure areas such as schools, parks and airports, as long as they have a license. Airports have strict security measures in place, so it would make sense to leave your handgun at home if you are traveling, unless you want to face criminal firearm charges. However, the Transportation Security Administration (TSA) is seeing more and more handguns being seized at airports.

In fact, 2017 was a record year. Through November 2017, the TSA seized 3,939 firearms at security checkpoints at airports. This is higher than the 3,391 firearms seized in 2016, the 2,653 firearms seized in 2015 and the 2,212 firearms seized in 2014. As you can see, the numbers are growing year after year. In December 2017, 72 firearms were found in carry-on bags in a one-week period. Sixty-six of them were loaded.

Given that a growing number of Americans are carrying guns legally, researchers say that the number of handguns found in carry-on bags has actually declined. Given that TSA screened more than 738 million airline passengers in 2017, finding a few thousand guns is not considered a big deal. Still, finding guns at the airport can be a scary situation after the 9/11 terrorist attack.

If TSA discovers a firearm at a Texas airport, what happens next? Will you face jail time? Will you be fined? Read on to understand the laws that may apply in your case.

What the Law Says

The penalties for carrying a gun into an airport can vary based on the state and airport. Some states consider it a misdemeanor and you could face hefty fines and one year in prison. At one airport in Georgia, the fine is a whopping $100,000.

In Texas, the charges will vary based on how the authorities decide to proceed with the case. You could face anywhere from a Class A misdemeanor to a third-degree felony. If you are charged with a Class A misdemeanor, you could face a $4,000 fine and up to one year in county jail. If you are charged with third-degree felony, you could face up to 10 years in prison and a $10,000 fine.

Defenses to Texas Law

Under Texas Penal Code, Section 46.03, Subsection (a)(5), you commit a weapons offense if you knowingly or recklessly possess a firearm in a secured area of an airport. However, this does not mean you will face punishment. In fact, you might not even get arrested for such a crime.

That’s because taking a firearm into a TSA security checkpoint at an airport is decriminalized to some degree. However, all three of the following elements must apply:

  • You checked all firearms as baggage before entering the secured area, in accordance with state and federal laws.
  • You are licensed to carry a handgun in the state of Texas and had the license in your possession at the time you enter the checkpoint.
  • Once you completed the screening process and were notified that you had a handgun in your possession, you exited the screening checkpoint immediately.

This is what is considered an affirmative defense to the prosecution. So if you followed all these steps and did not make a fuss, you should be OK. Once you are informed that a gun was found in your carry-on bag, you should return it to your car or pass it off to a friend or family member who can take it out of the airport.

Get Help From a Collin County Criminal Defense Attorney

Firearm offenses are often serious. If you are arrested at an airport for carrying a weapon, federal charges will often apply. It’s important that seek legal representation as soon as possible to protect your rights.

A Collin County federal firearm violation attorney can defend you against the state and federal charges you may face. Contact Rosenthal & Wadas today at 972-369-0577 to schedule a free consultation to discuss your case.

Posted in Uncategorized

Christmas Package Theft in Texas

Christmas Present

Texas is strict when it comes to theft. Depending on the value of the package stolen, a person could face anywhere from a misdemeanor to a lifetime in prison and thousands of dollars in fines. If you have been accused of theft this holiday season, contact the Collin County criminal defense lawyers at Rosenthal & Wadas to learn about your options.

What the Law Says

Mail theft is a crime at both the state and federal levels. Therefore, a person could face multiple charges for stealing a Christmas package. Under federal law, 18 U.S. Code § 1708 states that a person who steals or takes any type of mail—including letters, bags, packages and postcards—shall be fined and imprisoned for up to five years. The theft may have taken place at a post office, mail carrier, mail box or other receptacle. Anyone who takes, buys, hides or has in their possession any mail that is known to be stolen will also be charged with theft.

Texas law can be much stricter, depending on the value of the mail stolen. Under Texas law Sec.31.03, theft occurs when a person takes or steals another person’s property to intentionally deprive owner of said property.

If the stolen property is valued at under $100, then the offense is classified as a Class C misdemeanor. This is punishable by a $500 fine. A Class B misdemeanor is reserved for theft of a driver’s license or property valued between $100 and $750. This crime is more serious in nature and results in up to 180 days in jail and a $5,000 fine. A person is charged with a Class A misdemeanor for stealing property valued between $750 and $2,500.

A state jail felony is the charge for theft where property valued between $2,500 and $30,000 is stolen. A person could also face this crime for stealing property from a corpse or for stealing a gun or an election ballot. This crime is punishable by between 180 days and two years in jail and a fine of up to $10,000.

A person can face a third-degree felony if the value of the stolen property is between $30,000 and $150,000, or the property is cattle, horses or livestock, or 10 or more goats, sheep or swine, stolen in a single transaction. The punishment is 2-10 years in prison and up to $10,000 in fines.

Theft is a second-degree felony if the value of the property stolen is between $150,000 and $300,000, or the stolen property consists of an automated teller machine, its contents or components. The punishment is 2-20 years in prison and a fine of up to $10,000.

The most serious form of theft occurs when the value of the stolen property exceeds $300,000. This is classified as a first-degree felony punishable by 5-99 years in prison as well as a $10,000 fine and probation.

Get Help From a Collin County Theft Attorney for Christmas Theft

Theft is a crime that can affect you for many years—even after you have served your time and paid any fines or restitution. Because this crime involves moral character, you could face issues in your professional life, such as applying for a license as a lawyer, teacher, doctor or financial professional.

There are defenses and other ways to get your charges reduced. Therefore, seek qualified legal advice from an experienced Collin County theft attorney. The criminal defense attorneys at Rosenthal & Wadas will fight for your rights. Contact us today at (972) 369-0577 to schedule a free consultation.

Posted in Federal Criminal Defense, Theft

Why Your College Student Needs to Hire a Lawyer for their Drug Possession Case

College Student

Thousands of arrests are made throughout the state yearly for possession of controlled substances. Unfortunately, many people are not aware of the consequences of a first-time conviction for this offense. Young people, in particular college students, try to handle these cases themselves simply to avoid having their parents find out that they have been charged with a crime.

Unfortunately, a quick mistake in judgment or simply being in the wrong place at the wrong time can have a severe negative impact on your future. A criminal conviction can lead to you losing opportunities for jobs, graduate school, law school or medical school. It can even lead to you being expelled or suspended from your college or university.If you are a student that has been arrested for a criminal offense or if you are the parent of a college student charged with a crime, your first order of business in such a situation should be to get legal representation. It is important to hire an attorney right away to learn about your legal options.

Common defenses for Texas drug crimes stem from improper searches and seizures, as well as issues that arise during the chain of custody of the evidence. There are a number of diversion programs in most counties, both for the first-time offender and for offenders who are ready to make a substantial change in their lives.

Any drug or marijuana conviction in the state of Texas will lead to a driver’s license suspension of 180 days. That means even paying a drug paraphernalia ticket will get your license suspended. Additionally, once the license is suspended, the only way to get it reinstated is to take a state-certified drug offender program which is a 15 hour in-person class.

If you have a criminal drug charge call our office to schedule a free consultation. Rosenthal & Wadas is Collin County’s largest criminal defense firm. We are the only firm in Collin County with two partners board certified in criminal law by the Texas Board of Legal Specialization. Both partners are former state criminal prosecutors and head a firm of seven lawyers who have dedicated their practice to the defense of individuals charged with criminal offenses.

Posted in Criminal Defense

Do you have plans on “Black Wednesday”?

Black Wednesday

Most Americans are familiar with the term “Black Friday,” the shopping day after Thanksgiving when consumers flock to stores to find bargains galore. Not as many people are aware of “Black Wednesday” or “Blackout Wednesday”, the evening before Thanksgiving that has become one of the biggest party nights of the year.

The night before Thanksgiving has a special combination of qualities that have led to its popularity amongst revelers. College students and young professionals typically head home for Thanksgiving, making it a convenient time to catch up with old classmates and friends. Most people get Thursday and Friday of Thanksgiving week off from work, ensuring several solid days of lounging and eating. And, in many places, Black Wednesday has become an event in and of itself, with bars offering food and drink specials that cater to large crowds.

Black Wednesday is just the start of a heavy DWI enforcement period that runs through New Year’s Day. If you kick off the holiday season on Black Wednesday remember that planning a sober ride is always the best idea. If you do find yourself in the custody of police the sooner you contact a criminal defense attorney the better off you will be for many reasons.

Getting arrested the night prior to a holiday can lead to a lengthy stay at the jail. Normally if you are arrested on a Wednesday night you can expect to appear in front of a judge and charged within X hours, or released. However, with Thanksgiving being a 2-day holiday this means that if a person is arrested on Wednesday night (or Thursday or Friday, for that matter) they will sit in custody until Monday morning before seeing a judge.

To avoid staying in jail all weekend you need to hire Rosenthal & Wadas to have an attorney file a “writ bond.” A writ bond allows an attorney to execute bond paperwork and deliver the cash bond to the jail so the arrested person can be released immediately, without having to wait for arraignment by a judge. Not all offenses are eligible for writ bonds, but DWI and Theft are two of the most common.

If you do find yourself in trouble with the law after having one too many, don’t let a simple mistake ruin your holiday. Contact our office, we are available by phone 24 hours a day at 972-369-0577. At Rosenthal & Wadas, we are dedicated to helping people resolve their sensitive legal issues, get through challenging times and move forward with their future.

Posted in Uncategorized

Is Your Seven-Day Pill Box Illegal?

Prescription Drugs 1

Prescription drug abuse has emerged as a major public health issue in recent years, notably with respect to opioid painkillers like Oxycontin. But legally speaking, all drugs requiring a doctor’s prescription are tightly regulated. If you are found in with any such drug on your person without a valid prescription, you can be arrested and charged with illegal possession of a controlled substance.

What Constitutes a Valid Prescription in Texas?

Under Texas law, only a licensed physician, dentist, podiatrist, or veterinarian, and certain optometrists may issue a prescription. In some cases, an advanced practice nurse or physician’s assistant may also issue a prescription if he or she is under the supervision of a physician. The prescription itself must comply with certain labeling and packaging requirements.

For instance, the Texas State Board of Pharmacy requires prescriptions be dispensed in a childproof container (unless the patient requests otherwise) that bears a label with the name, address, and phone number of the dispensing pharmacy. The label must also list the date the prescription was filled, the name of the prescribing doctor, the quantity dispensed, and any instructions for use that is “easily readable” by the patient.

A prescription can only be refilled with a physician’s authorization. The doctor may authorize one or more refills as part of the original prescription. But you cannot ask the pharmacist to give you any refills “in advance.” Prescriptions also come with a legal time limit, either six months or one year, after the expiration of which no remaining refills are valid.

In addition, there are certain controlled substances, known as Schedule II drugs–including morphine, Ritalin, Dexedrine, and Percodan–that carry such a high risk of abuse that refills are legally forbidden. Instead, you need to obtain a new prescription in writing each time your doctor determines additional medication is necessary.

Can You Travel With Your Pills Without the Original Bottle?

It is a good idea to always carry your prescription drugs in the original container from the pharmacy. But some people decide to use a separate container–such as a 7-day pill organizer–to help keep track of their drug usage. While this is perfectly fine at home, it may carry certain legal risks while traveling.

Some states specifically forbid carrying prescription drugs in a “generic” or unlabeled container. Texas has no express law on this subject. The problem is that if you are stopped by the police and found in possession of your prescription medication outside of its original container, you can still be arrested for possession of a dangerous drug. This is a Class A misdemeanor in Texas, which carries a potential jail sentence of one year, in addition to a maximum fine of $4,000.

Of course, you are unlikely to actually be convicted if you can prove you have a valid, current prescription. If for some reason you do find it necessary to travel with your medications outside of their original container–for example, if you need to take multiple drugs and it would be unwieldy to carry a group of bottles–make sure you keep copies of your written prescriptions in your wallet or car. This way, if you are detained by the police, you can avoid a potential misunderstanding.

Keep in mind, however, that law enforcement does not have an automatic right to stop and search you for pills. Even in the context of a routine traffic stop, police must normally have probable cause before searching your vehicle without your consent. In other words, just because you have a broken taillight, that does not give an officer the right to demand you produce prescriptions for any drugs on your person.

Do You Need Help From a Collin County Drug Offense Attorney?

When traveling with medication outside of Texas, you should also be aware of any applicable local laws regarding prescription bottles. The Transportation Security Administration does not require you to keep medication in their original containers. Nor do you have to declare or present any non-liquid medications to security agents. But once again, the laws of the state you may be traveling to may prohibit keeping prescription medication in generic or unlabeled containers.

And if you do find yourself in any legal trouble arising from the use or possession of prescription medications–including your own–it is important not to panic. The first thing you need to do is seek qualified legal advice from an experienced Collin County drug lawyer. Contact the Collin County criminal defense lawyers at Rosenthal & Wadas today if you need to speak with someone right away.

Posted in Criminal Defense, Drug Crimes

What Will Happen to Me If I Aid or Assist a Fugitive?

Assisting a Fugitive

Many of us have faced a situation where a family member or friend is accused of a serious crime. Your first instinct may be to offer help. After all, if you believe the person is not guilty, then you want to do everything in your power to help them avoid possible jail time.

But there is a critical difference between offering moral or legal support–such as helping them find a qualified Collin County criminal defense lawyer–and actually helping them to hide from law enforcement. Such acts may be considered aiding or abetting a fugitive under Texas and federal law, and in some cases you may end up being charged as an accessory to the underlying crime.

Federal and State Laws Punish “Harboring”

In Texas, the law that criminalizes the act of harboring a fugitive is known as Hindering Apprehension or Prosecution. This is a very broad state law that could subject a person to criminal charges if they harbor, conceal, provide or aid in providing a person with the means of avoiding arrest or effecting escape; or even warns someone of impending discovery or apprehension. This law could even land parents in legal trouble if the person they are “harboring” is their own child. Hindering Apprehension or Prosecution is a Class A misdemeanor unless the harbored person is wanted for a felony, in which case it is a Third-Degree Felony punishable by 2-10 years in prison and up to a $10,000 fine.

Now at the federal level, there are specifically enumerated offenses applicable to “fugitives for justice.” In this context, a “fugitive” is normally defined as someone subject to a court-issued arrest warrant, as opposed to someone who may merely be under suspicion of a crime by the police. Under 18 U.S.C. § 1071, anyone who “harbors or conceals” a person to prevent their “discovery and arrest” is guilty of a crime.

If the fugitive’s alleged offense is a misdemeanor, the penalty for harboring the person is no more than 1 year in jail. However, if the fugitive is charged with a felony, anyone who helps him or her evade arrest could face up to 5 years in prison. The judge may also impose a fine for a harboring conviction.

Note that just because you provide aid or assistance to someone charged with a crime, that does not necessarily mean you are guilty of harboring. The U.S. Fifth Circuit Court of Appeals, which has jurisdiction over federal criminal cases in Texas, has said that harboring requires the prosecution to prove three elements beyond a reasonable doubt:

  • the defendant knew that there was an outstanding federal arrest warrant issued for the fugitive;
  • the defendant committed one or more “physical acts” designed to help the fugitive avoid detection and arrest; and
  • the defendant’s actions were expressly “intended to prevent the fugitive’s discovery.”

The first and third elements–knowledge of an arrest warrant and intent–are often the most important when defending against a harboring charge. Say your brother asks you for the keys to your car. You think nothing of this, since he regularly borrows your car. If he then proceeds to rob a bank and uses the car to flee Texas, you are not guilty of harboring, since you did not know that he committed a crime–and therefore lacked knowledge of any arrest warrant–and you never intended to help prevent his capture by the police.

As for the second element–a physical act–the Fifth Circuit has said that merely failing to disclose a fugitive’s location or providing “financial assistance” does not, in and of itself, constitute harboring as defined by the law. But if the police come to your home looking for a fugitive and you lock him in the basement to conceal him, that would fulfill the “physical act” requirement.

Do You Need Advice From a Collin County Criminal Lawyer?

Texas prosecutors often use the threat of harboring or aiding and abetting charges to force family members or associates to testify against the principal. That is why if you know someone who has been arrested or charged with a serious crime and fear the prosecution may target you next, it is important to seek advice from the experienced McKinney criminal defense attorneys at Rosenthal & Wadas. Call us today at 972-369-0577.

Posted in Federal Criminal Defense

When Does Smashing Pumpkins and Ding Dong Ditching on Halloween Become Criminal?

Pumpkins

Halloween is about trick-or-treating and scarfing down way too much candy. But when does too much fun become criminal?

Harmless Pranks or Misdemeanors & Felonies?

Smashing Pumpkins – This common prank usually just upsets those who devoted their time to carving the pumpkins. But if you smash the pumpkin of another, and are caught by law enforcement, you run the risk of being charged with theft or criminal mischief.

Theft is committed if you unlawfully “appropriate” the property of another, with intent to “deprive the owner of property.” Criminal mischief applies when you “intentionally or knowingly” damage someone else’s “tangible property,” or otherwise tamper with it. You don’t actually need to take the pumpkin anywhere. If you smash it, you are intentionally damaging it and depriving the owner of his or her ability to enjoy it. A criminal charge in such cases can range from a Class C misdemeanor (if the value of the pumpkin was less than $100) to a state jail felony (if it was an award-winning pumpkin valued at more than $2,500). Criminal Mischief can also be charged by establishing that the actor intentionally damaged the property of another.

Ding Dong Ditching Billy Madison Style – Otherwise known as placing a paper bag filled with solid excrement (usually of the canine variety) on someone’s doorstep, lighting it on fire, and ringing the doorbell. This prank could lead to a criminal mischief charge if the you cause property damage due to the negligent use of fire. Indeed, if the fire spreads from the bag to the doormat or the porch, you may be guilty of criminal mischief. As with the smashing pumpkins scenario, if the doormat or other property damaged was worth less than $100, you are looking at a Class C misdemeanor charge.

That may not sound too bad, but consider that if you intentionally set any kind of fire, even as a “Halloween prank,” you can also be charged with arson, which Section 28.02 of the Texas Penal Code defines as starting a fire “with intent to destroy or damage any building, habitation, or vehicle” that you know belongs to someone else. Arson involving a “habitation”–i.e., someone’s house–is classified as a first-degree felony in Texas. This means a ding dong ditch could, in theory, send you to prison for a minimum of 5 years (and possibly the rest of your life).

Toilet Papering Your Neighbor’s House – Covering someone’s house in toilet paper has become a popular prank not just at Halloween time, but also following celebratory events like a high school graduation or winning an important sports contest. For instance, Chicago hockey fans famously TP’d their coach’s house after winning the Stanley Cup in 2015. But when the homeowner doesn’t appreciate such “festive” decorating of their property, you can find yourself in significant legal trouble.

While there are no specific laws in Texas prohibiting toilet papering, it can be charged as criminal mischief. You can also be liable for [criminal trespass] under Section 30.05 of the Penal Code if the owner had a “No Trespassing” sign posted or ordered you to leave the property prior to the toilet papering began. Criminal trespass is normally a Class B misdemeanor, but the charge may be elevated to Class A if the act occurs “in a habitation.”

Also note that a parent may be liable if they assist their children (or their friends) with a toilet paper prank. In 2013 a grand jury in Tarrant County indicted a Coleyville mother for criminal mischief after she was seen “purchasing more than 100 rolls of toilet paper with a group of children the night before” a local house was covered in toilet paper and other items, allegedly causing more than $6,000 in property damage.

Egging a House, Car, or Person – Similar to toilet papering but potentially more hazardous–and certainly more smelly–is the time-honored practice of egging a house, car, and in many cases even a person. The truth is that eggs are best used in an omelet, not as part of a prank. Egging can do serious damage and open you up to civil as well as criminal lawsuits.

Consider what might happen if you and your friends decide to egg that really nice Mercedes parked out on the street. In addition to the dents caused by the smashed egg shells, the chemicals in the egg whites and yolks can damage the car’s paint job. Let’s say it costs the owner $1,000 to repaint the entire car. At that level of damage, you are looking at a Class A misdemeanor, a few steps up from the Class C misdemeanor for smashing that pumpkin we discussed earlier. The owner can also seek civil damages against you–or your parents, if you are a minor–which can also lead to an award of attorney’s fees and court costs.

Similarly, if you decide to egg a person, the victim could turn around and press criminal charges for assault. That may sound excessive, but Section 22.01 of the Penal Code defines assault as “intentionally, knowingly, or recklessly” causing “bodily injury to another.” And if you think an egg does not cause bodily injury, consider there have been cases where people were blinded by egging attacks.

What Penalties Do I Face If I’m Arrested for a Prank?

In this article we have referenced various classes of misdemeanors. But what are the actual consequences when a Halloween prank turns into a criminal charge? Here is a brief rundown of the sentencing possibilities:

  • For a Class C misdemeanor, the maximum penalty is a $500 fine.
  • For a Class B misdemeanor, the maximum find is raised to $2,000 and you can also be sent to jail up to 180 days (about 6 months).
  • For a Class A misdemeanor, the Class B penalties are essentially doubled, to a $4,000 fine and/or 1 year in jail.

Beyond the Class A misdemeanor level are felonies, which in Texas refers to offenses where you may be sentenced to more than 1 year in prison. Felony convictions also carry a number of restrictions on a person’s civil rights, such as the loss of your right to vote or carry a firearm. And any kind of criminal record, even just for a misdemeanor, can negatively affect your employment, housing, or credit opportunities.

Do You Need Help from a Collin County Criminal Defense Lawyer?

Halloween pranks may start out with harmless intentions, they can quickly turn into legal headaches. But with the assistance of an experienced attorney, you can put forth a successful defense and protect your child’s future. Keep the contact information for Rosenthal & Wadas in your phone. We hope you don’t need us but if you do we are just a phone call away.

A DWI arrest on Halloween will not only ruin your evening, but can also create a haunting conviction on your record, which can take a toll on your future. If you do find yourself or your child in a legal situation, please contact the Collin County criminal lawyers at Rosenthal & Wadas to discuss your situation.

Posted in Criminal Defense

What Is Deferred Adjudication in Texas?

Deferred Adjudication

A criminal conviction can have a serious impact on your life. Beyond the actual sentence–including the possibility of jail time–a conviction of any kind can make it harder to get a job, receive certain government benefits, and even exercise basic civil rights such as voting. One way to avoid the immediate and collateral consequences of a conviction is to seek a [deferred adjudication]. This is a special type of community supervision (probation) available in many–though not all–Texas criminal cases.

When Is Deferred Adjudication Available, and How Long Will It Last?

Section 42A, Subchapter C of the Texas Code of Criminal Procedure spells out the parameters of deferred adjudication in Texas. The first, and most important, thing to note is that no defendant has the right to a deferred adjudication. It is granted at the discretion of the trial judge, who must decide whether deferred adjudication is in “the best interest of society” as well as the defendant.

The second thing is that deferred adjudication requires the defendant to initially enter a guilty or “no contest” plea. In effect, the defendant is foregoing the right to have his or her case tried by a jury. Instead, the judge conducts a separate hearing to determine whether the prosecution has sufficient evidence to “substantiate the defendant’s guilt.” Once the judge makes that determination, the court will then “defer further proceedings” without formally entering a final judgment of guilt.

Basically, the court suspends the case for a period of time, during which the defendant is on probation. The amount of time will vary depending on the type of crime and the specific facts of the case. Section 42A.103 establishes the following maximum time limits for deferred adjudication:

  • In felony cases, no more than 10 years; and
  • In misdemeanor cases, no more than 2 years; but
  • In criminal cases involving certain sex crimes (aggravated sexual assault, indecency with a child, etc.) deferred adjudication must last at least 5 years.

Also note there are some crimes where deferred adjudication is not permitted by law, including any offense that involves drunk driving.

What Conditions Apply to a Deferred Adjudication Probation?

It is critical for a defendant who receives deferred adjudication to strictly comply with all probation terms set by the court. Any probation violation, even one that is inadvertent or unintentional, may provide grounds for revoking community supervision and proceeding to an immediate adjudication of the original criminal charge. And that can mean a defendant is suddenly faced with the prospect of a criminal conviction and prison time.

So what exactly are the terms of probation or community supervision? The answer will vary somewhat from case to case. If you find yourself in a deferred adjudication situation, the court will give you a detailed list of conditions. But here are some of the standard conditions applicable to most Texas residents on probation:

  • Do not commit any further crimes under state or federal law;
  • Do not use illegal drugs or alcohol (you can be required to take a urine test);
  • Do not associate with persons or places with a “disreputable or harmful character”;
  • Report to your probation officer at least once a month, or as otherwise directed;
  • Allow your probation officer to visit your home or workplace as necessary;
  • Maintain “suitable employment,” and if your working situation changes, report that information to your probation officer within 48 hours;
  • Do not move out of your home county without permission from your probation officer or the judge responsible for your case;
  • Pay any fines or fees required by law, which may include restitution to the victim of your alleged crime; and
  • Keep current on all child support obligations.

Once again, if you do not follow any of your probation conditions, the prosecution may file a petition to end your deferred adjudication and sentence you for the original crime. By law, you have the right to a hearing before the judge before this happens. But unlike a criminal trial, where all charges must be proven “beyond a reasonable doubt,” in an action to revoke probation, the prosecution only needs to show a violation occurred by a “preponderance of the evidence,” a much lower standard.

Work With an Experienced Collin County Criminal Defense Lawyer

Assuming you complete probation without incident, deferred adjudication will ultimately lead to dismissal of the original charge. While this means there will not be a conviction on your record, this does not automatically erase the records of the arrest itself. This requires a separate legal proceeding to seal your criminal record.

There are also cases where deferred adjudication may not be in a defendant’s best interest. That is why it is important to work with an experienced criminal lawyer in Collin County whenever you are facing any kind of felony or misdemeanor charge. Contact the offices of Rosenthal & Wadas, PLLC today to speak

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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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