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What You Need to Know About SCRAM Devices

handcuffs

If you were recently arrested for Driving While Intoxicated (DWI) in Collin County or other parts of Texas, the judge may order you to abstain from consuming alcohol for a certain period of time. Instead of having you come in on a daily basis to check your blood alcohol concentration (BAC) by chemical test, the court may instead require you to wear a Secure Continuous Remote Alcohol Monitor (SCRAM). This device is attached to your ankle, and it incorporates a sensor to detect the presence of alcohol.

There are multiple issues you need to know if you’ve been ordered to wear a SCRAM, and a Collin County DWI defense attorney can provide the essential details to ensure you don’t run into trouble with the device. An overview may also be helpful.

Why You May Be Ordered to Wear a SCRAM

1. At your first court appearance after a DWI arrest, a judge will likely release you until the day of your trial. In the ordinary misdemeanor DWI in Collin County, a Judge is unlikely to order a SCRAM device as a condition of bond unless less restrictive measures such as a Deep Lung Device or in home unit prove insufficient to deter the use of alcohol while on bond.
2. If you receive probation to resolve your DWI case, avoiding alcohol may be a condition imposed by the court. The SCRAM will inform the court if you violate the terms of your probation, which means your court case can be re-opened.
3. If you go to trial on a DWI and you’re convicted, it’s possible that you’ll be sentenced to jail time. Many DWI defendants are sentenced to community supervision (probation.) A judge could order that you wear a SCRAM device as a condition of community supervision. The court can rescind the arrangement and order you to jail if the SCRAM notifies officials that you were drinking.

How a SCRAM Works

Alcohol is absorbed into the blood stream through the digestive process, and you eliminate most through the urinary tract. However, some of it is passed through your skin when you sweat. The SCRAM measures the alcohol that’s released from your pores through two sections of the device:

  • One box conducts tests similar to a breathalyzer to assess your BAC; and,
  • The second stores the information about your BAC and transmits it to officials on an hourly basis.

Do’s and Don’ts While Wearing the SCRAM

Obviously, the first, most important rule about wearing the SCRAM is to avoid alcohol at all costs. However, even when you’re vigilant and don’t take a drop, there are other ways you could accidentally trigger the device. Therefore, some tips include:

  • Do Check Labels on What You Consume: You may be surprised to learn that some food, non-alcoholic drinks, and medicines have alcohol in them. Even a trace amount can set off the SCRAM and alert officials, who don’t care whether the consumption was inadvertent.
  • Don’t Forget to Look at Household Goods: Though you won’t be putting them in your mouth, some cleaning products contain alcohol. At higher levels, the substance can seep into your skin and trigger the SCRAM.
  • Do Properly Maintain the Sensor Connection: The SCRAM works by sensing the level of alcohol excreted through your skin, so avoid putting any item between the sensor and your body. Though it won’t alert officials to ingestion of alcohol, it may indicate to them that you were trying to remove the device.
  • Don’t Go Swimming: Immersion in water has a similar effect on the sensor, which could lead police to think that you’re attempting to take the SCRAM off. Avoid a bath, swimming, and related activities that involve immersion in or significant amounts of water. You should even wear proper protection from sweat when engaging in a strenuous workout.
  • Do Request Temporary Removal When Necessary: Most security screenings will not be a problem for the SCRAM, such as going to the courthouse, a sports event, or airport. However, when you’re undergoing some medical examinations, the device needs to come off. If you’re having an MRI, x-ray, CT scan, or related tests, your attorney will need to request court permission for temporary removal. Talk to your doctor if you have concerns about other types of exams.

Discuss SCRAM Basics with an Experienced Criminal Lawyer in Collin County

For more information on wearing your SCRAM and how to remove it legally, please contact Rosenthal & Wadas, PLLC to schedule a consultation with a skilled Collin County criminal defense lawyer. From our office in McKinney, TX we serve clients throughout Collin, Denton and Dallas County, and we’re happy to answer your questions.

Posted in DWI

Intoxication Manslaughter Charges in Collin County

Driving Drunk

Texas recognizes many different types of homicide. One category of homicide is reserved for people who kill someone while driving intoxicated. This is called intoxication manslaughter, and it is a very serious crime.

If you killed someone while driving impaired, even accidentally, then you are at a high risk of being charged with intoxication manslaughter. You will need an experienced Collin County criminal defense attorney to help you fight off the charges and obtain a favorable result. For help with your case, please contact an intoxication manslaughter lawyer at Rosenthal & Wadas, PLLC today for a free initial consultation.

How Texas Defines Intoxication Manslaughter

The relevant statute is found at Texas Penal Code, Section 49.08. Under the statute, you can be convicted of intoxication manslaughter if you:

  • operate a motor vehicle in public or operate an aircraft, watercraft, or an amusement ride,
  • while intoxicated, and
  • cause the death of another person by accident or mistake because of your intoxication

Each element must be present to be convicted of this crime. Furthermore, the statute defines “intoxication” as having a blood alcohol concentration (BAC) of 0.08 or higher or being impaired physically or mentally because of drugs or alcohol.

Consider the following: Karen leaves a bar and gets into her car. While driving home, she hits a pedestrian who she didn’t see when she ran a red light. Karen’s BAC is 0.10 at the time of the accident. In this situation, Karen is probably guilty of intoxication manslaughter.

However, imagine the facts slightly changed: Karen is at a bar, when someone slips a date rape drug into her drink. Feeling groggy, she gets into her car and tries to drive home. In the process, she strikes a pedestrian, killing him. In this situation, Karen might not be responsible for intoxication manslaughter because she did not voluntarily take the drugs. Instead, she took them against her will and without her knowledge.

Punishments for Intoxication Manslaughter

Under the statute, a first offense of intoxication manslaughter is a second-degree felony. In Texas, you are looking at between two and twenty years in prison, a fine of up to $10,000, or both.

However, in certain situations, you might receive enhanced penalties. For example, you can be charged with a felony in the first degree if you kill a firefighter, emergency medical services personnel, or police officer. Someone convicted of a first-degree felony faces a minimum of five years in prison and can be fined up to $10,000.

Other penalties can apply, such as the installation of an ignition interlock device and the performance of community service. Defendants might also need to take a state-approved alcohol or drug education class.

Defenses to an Intoxication Manslaughter Charge

If the police have arrested you for intoxication manslaughter, you need to hire a criminal defense attorney immediately. This is a very tough charge to beat, and you can’t expect jurors to have much sympathy for you since someone has died. However, you do have some defenses available, such as:

  • You were not intoxicated or high. The statute provides two ways of showing you are intoxicated—a high BAC or evidence that you were impaired. You might argue that you were not impaired in any way and that a breathalyzer or blood test was faulty.
  • Someone else is to blame for the death. The fact that you are intoxicated is not enough to prove manslaughter. Instead, the state also needs to show that you were the cause of death. Someone else might be to blame. For example, another vehicle might have swerved in front of you recklessly, causing the collision. Even if you were sober, you might still have hit them.

Remember, the state has the burden of proving each element beyond a reasonable doubt, which is a high standard. You might be able to create doubt as to who is really to blame for the tragic death.

Arrested for Intoxication Manslaughter? Call a Criminal Lawyer in Texas

In the immediate aftermath of a crash, you might be confused about who to turn to. Remember that you are not alone. An arrest is not a conviction, and you do have options other than pleading guilty. However, you need to find an attorney to represent you as quickly as you can.

At Rosenthal & Wadas, we have represented many people accused of manslaughter, and we know how to defend these cases the correct way. For immediate help, please contact us today. One of our Collin County criminal defense lawyers will gladly meet with you to discuss your case and the best path forward.

Posted in Uncategorized

The Key to Prom Night – Plan Ahead

Prom Night

April is beginning of prom season in Collin County. It is important for parents to take the time to talk to their kids about the potential hazards associated with prom night and how to best respond to peer pressure.

Here are five topics to review with your teens before they head out on prom night.

1. Consumption of Alcohol and Drugs – Talk to your kids about getting caught with drugs or alcohol at a school event can affect their academic or athletic eligibility. Let them know that if they go to someone’s home or hotel room or even hanging out in the park when there are drugs — the police could arrest everyone. Even if someone’s parent purchases the alcohol for them, they are still breaking the law and could be in serious trouble.

2. DWIs – Discuss who is driving that evening, whether your child or someone else, and make sure you are comfortable with that person as a driver. DWI charges can jeopardize your education, federal student aid, scholarships and loss of your license. Limo rentals and Uber are alternatives for parents to discuss with their kids before prom night as long as someone in the car is 18 (minors are not allowed to take an Uber or a Lyft unless they are accompanied by an adult per Uber and Lyft policies).

3. Sexual Consent – Alcohol, drugs and peer pressure can lead to teens making questionable or regrettable decisions when it comes to sexual contact. No means no, and if you take things too far or the other person is unable to give consent, you could end up facing sexual assault or rape charges. Talk to your teen about consent and what to do if they see a friend in a vulnerable position.

4. Vandalism –Even if it is just a prank, vandalism can result in the damage or destruction of property and they could be charged. If they damage school property, they can face upgraded charges of criminal damage to property. Remind your child that cameras are everywhere and if someone posts on social media that could be used against you.

5. After Midnight – Teens often want to celebrate prom long into the night hours, but if they are out driving around, they could be cited for a curfew violation. McKinney and Frisco both have curfew laws beginning at 12:01 AM, so make sure you know where your teens are heading after prom.

The Bottom Line

Talk to your teens about being careful on prom night. We want everyone to enjoy their evening out but acting foolish can have consequences. If things do get out of hand and you need a criminal defense attorney, know who to call ahead of time. Put the Rosenthal & Wadas number in your cell phone – 972-369-0577. We are available for emergency calls 24 hours a day, seven days a week.

Posted in Uncategorized

What Is a Terroristic Threat Charge in Texas?

Terroristic Threat

Free speech is a bedrock principle of American law. But “free speech” does not give you the right to say whatever you want without restriction or consequence. For example, if you speak threats of physical violence directed against a person or organization, you can be charged with a crime under the Texas Penal Code.

Two 17-Year-Old Males Charged in Separate Incidents

In fact, there have been at least two recent stories about law enforcement arresting individuals for making “terroristic threats,” which is a specific criminal offense recognized by Section 22.07 of the Penal Code. In the first incident, police in Denton arrested a 17-year-old student who allegedly called 911 and falsely reported that “people had firearms” on the campus of Braswell High School, according to the Denton Record-Chronicle. This prompted law enforcement to lock down four schools in the area. Police said no weapons were found, leading the 911 caller to be charged with making a terroristic threat.

In the second incident, another 17-year-old man, this one from Waxahachie in Ellis County, was charged with allegedly threatening to “commit jihad” against a women’s health clinic that performs legal abortions, according to Newsweek. It was unclear what specific facility the defendant was allegedly targeting, as media reports noted there were no such clinics operating in Ellis County, although there are several in the Dallas-Fort Worth area, which is located about 30 miles away. The actual threats were purportedly made on a Twitter account controlled by the defendant, who also posted “videos of guns, as well as racist comments and references to committing murder,” according to Newsweek.

It is worth noting that although both of the defendants are 17 years old, they are still charged as adults under Texas law.

The Penalties for Making Terroristic Threats in Texas

So what exactly qualifies as a “terroristic threat,” and what are the possible sentences each of these defendants face if convicted? As we noted above, making a terroristic threat is a specific offense defined in the Texas Penal Code. Basically, it is a crime to threaten to commit another crime “involving violence” that targets “any person or property” for any (or all) of the following reasons:

      1. to “cause a reaction” on the part of any “official or volunteer agency” that deals with emergencies;
      2. to place someone “in fear of imminent serious bodily injury”;
      3. to “prevent or interrupt” the use of a public building or place where the public has access, including an office building, car, or airplane;
      4. to impair or interrupt any public service, including a utility or public transit;
      5. to place the public–or any “substantial group of the public”–in fear of “serious bodily injury”; or
      6. to influence “influence the conduct or activities” of any government agency, official, or political subdivision.

For example, calling in a false bomb threat with the intent to get law enforcement to lock down a public school–as allegedly happened in the Denton incident–would qualify as making a terroristic threat under item (1) listed above. Similarly, threatening to attack a clinic open to the public–the charge against the man arrested in Ellis County–would qualify under item (3). Of course, it is possible for a given terroristic threat to qualify under multiple items.

As for the consequences, Section 22.07 provides different penalties depending on the type of threat and the intended target. Here is a brief rundown:

Item(s)Offense LevelMax. PrisonMax. Fine
1Class B Misdemeanor180 days$2,000
2Class B Misdemeanor180 days$2,000
2, if the target was a public servant or a member of the defendant’s family or householdClass A Misdemeanor1 year$4,000
2, if the target was a peace officerState Jail Felony2 years$10,000
3Class A Misdemeanor1 year$4,000
3, if the threat caused a financial loss of at least $1,500 to the ownerState Jail Felony2 years$4,000
4, 5, or 6Third-Degree Felony10 years$10,000

Contact a Criminal Lawyer in Collin County Today

As you can see, making a terroristic threat is not simply a case of someone exercising their right to “free speech.” It has a particular definition and legal context. And Texas law enforcement clearly takes such offenses seriously, as demonstrated by these two recent arrests.

So if you, or someone in your family, is charged with making a terroristic threat, you can’t afford to treat the matter lightly. These are serious charges with serious penalties attached. A qualified Collin County criminal defense attorney can help. Contact the offices of Rosenthal & Wadas, PLLC at 972-369-0577 if you need to speak with a lawyer today.

Posted in Criminal Defense, Federal Criminal Defense

Kyle Therrian Named to 2019 ‘Rising Stars’

Kyle Therrian New Photo

Kyle Therrian was selected for the 2019 Rising Stars list, a multi-phase selection process that mirrors the patented methodology used to assemble the Super Lawyers list. Attorneys designated as Rising Stars are up-and-coming attorneys who are 40 years of age or younger and have practiced law for 10 years or less. No more than 2.5 percent of the lawyers in the state are selected by the research team to receive this honor.

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.

“Kyle’s dedication to his clients, the community, and our firm is outstanding, and we are fortunate to have him on our team,” said Derk Wadas.

In 2018, Therrian was also recognized by peers and colleagues for his dedication to the legal profession when he was named D Magazine’s 2018 list of Best Lawyers Under 40.

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process, which results in a diverse listing of exceptional attorneys. The Super Lawyers and Rising Stars lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. For more information about Super Lawyers, go to SuperLawyers.com.

Posted in Uncategorized

Be Cautious When Buying CBD Oil

CBD Oil

CBD oil is currently taking Texas by storm. Many people swear by this product to help manage the symptoms of many different diseases and ailments. However, CBD oil is made from the cannabis plant, so it could potentially contain THC, which would make the oil a banned substance.

Buyer beware! The state needs more manufacturing and testing standards for medicinal cannabis products. It needs more oversight of the industry as well. Until then, buyers should know the legal risks they face by purchasing this product.

What is CBD Oil?

CBD is short for cannabidiol, which is one of several dozen cannabinoids in the cannabis plant. CBD oil has high concentrations of cannabidiol, though it might also contain very small amounts of Tetrahydrocannabinol, or THC. THC is the chemical that creates the psychological high people feel when smoking marijuana. CBD does not result in any high.

What is CBD Oil Used For?

Many people have used this oil to treat a range of physical ailments, including:

  • Inflammation
  • Arthritis
  • Depression
  • Anxiety
  • PTSD
  • Chronic pain
  • Colitis
  • Sleep disorders
  • High blood pressure
  • Epilepsy and seizures

Why Might CBD Oil be Illegal?

The legal status of CBD oil is unclear at the present moment. Currently, federal law allows hemp and hemp plant derivatives so long as they have under 0.3% THC. It is no longer illegal to grow and possess hemp plants or derivatives so long as the THC concentration is below that limit.

However, some CBD oil can have THC levels above 0.3%. Furthermore, Texas allows people with intractable epilepsy to use CBD oil to treat seizures. This law was passed in 2015 and went into effect in 2017. Under the law, only a qualified medical professional can write a prescription, and patients must obtain their CBD Oil from a licensed dispensary. Because the law did not legalize CBD oils to treat all conditions, an argument can be made that it is currently illegal to possess CBD oil without a prescription.

But what if you want to use CBD oil for something else without a prescription? In this case, you could be prosecuted for CBD Oil as a Penalty Group 2 drug if the CBD oil has any THC in it. Some prosecutors in Texas have begun bringing these cases.

What are Penalties for a Substance Penalty Group 2 Violation?

Punishment will vary depending on the amount you are caught with:

  • Less than one gram: a state felony punishable by 180 days to 2 years in state jail or a fine up to $10,000, or both
  • 1 gram but less than 4 grams: a third-degree felony punishable by 2-10 years in state prison or a fine of $10,000, or both
  • 4 grams but less than 400 grams: a second-degree felony punishable by 2-20 years in state prison or a fine of $10,000, or both
  • 400 or more grams: an enhanced first-degree felony punishable by up to 99 years in prison or a $50,000 fine, or both

Felonies also carry other collateral consequences, such as losing your right to vote and the ability to own a firearm. Criminal convictions also show up in background checks, which might interfere with your ability to rent an apartment or get hired for a job.

Buying CBD Oil in Collin County – What Should Consumers Do?

If a doctor has prescribed CBD oil, then you should get the drug from one of the three state-approved dispensaries. Buying from someone else could be illegal—regardless of what you are reading online. Many CBD oil manufacturers maintain websites that do not contain accurate legal information, all in an attempt to hype their product.

If you want to use CBD oil without a prescription, then you need to be careful about where you buy from. If the oil ends having too much THC in it, then you can be prosecuted for a felony. Look for products that emphasize they are made from industrial hemp and do not contain any THC. Of course, they still might—so you are running a risk.

Reach Out to a Criminal Defense Lawyer in Collin County

As Texas continues to grapple with the implications of medical marijuana, our state’s laws will remain muddled. For this reason, consumers should be empowered to make smart decisions when they are in the market for buying the product.

If you have failed a drug test, or if the police have come knocking on your door, you will need an experienced criminal defense attorney. At Rosenthal & Wadas, PLLC, our experienced Collin County criminal defense lawyers can help. We can make a compelling argument for why your charges should be dismissed or reduced, and we can plot to win the case before a judge, if necessary.

All you need to do is reach out to us today. Please call 972-200-9395.

Posted in Uncategorized

Rosenthal & Wadas named “Simply the Best in McKinney”

Best of McKinney Award Photoshop

Rosenthal & Wadas was named the 2018 Reader’s Choice winner in the Attorney/Law Firm category.

Star Local Media gives its readers the opportunity to recognize local businesses with their annual recognition program where readers are invited to choose their favorite businesses, representing the very best in their community.

Votes were accepted from Nov. 15 – Dec. 16., and the winners were announced in the Winners Edition that was included in the Jan. 27 publication.

Posted in Uncategorized

I was Contacted by an Investigator—Do I Need a Criminal Attorney?

Law Books

The police often investigate a crime before making an arrest, especially if they need more proof that a person is probably the culprit. Being called into the police station or having officers show up at your doorstep is unnerving enough. But what happens if they start asking you detailed questions about where you were on a certain day? Are they digging for information to use to arrest you?

Many people are rightly worried when the police start questioning them, and they wonder, “Do I need a criminal attorney?” The answer is a definite Yes. Below, we will explain the many benefits of hiring an attorney as soon as possible.

An Attorney Can Keep You from Making Incriminating Statements

The police can use anything you say against you later during a criminal trial. Yes, the police must give you so-called Miranda warnings—You have the right to remain silent, Anything you say can be used against you, etc.

But did you know they only need to give these warnings if you are in custody? If they interview you as part of an investigation, and you are not in custody, the police can use any incriminating statement you let slip at trial.

If you have a lawyer by your side for every police interview, you won’t slip up and say something you will later regret. Your lawyer will protect your rights, including your right to remain silent. Once you suspect the police consider you the culprit, you need legal representation—even if you are innocent.

Hiring a Lawyer is Not an Admission of Guilt

Let’s get this out of the way. Many people don’t want to hire an attorney because they fear the police will assume they committed the crime. After all, why does an innocent person need a lawyer?

But hiring a lawyer does not send any signal to the police. And the state can’t charge you with a crime unless they have sufficient evidence of your guilt. By hiring an attorney, you make it as hard as possible on the state to bring charges against you.

Some people are also afraid to “anger” the police by requesting a lawyer. That’s another myth we need to debunk. In reality, it doesn’t especially matter if the police are “angry.” They have a job to do, which is to gather as much evidence as possible about a crime. By hiring a lawyer, you will guarantee that the police must respect your Constitutional rights as they go about their jobs.

You Need to Build a Strong Defense Right Away

In the event you are charged with a crime, you will need a strong defense. And the strongest defenses are those that a lawyer begins building immediately.

The fact is that evidence can disappear quickly. Alibi witnesses might move to another state, paper receipts that show where you were at a point in time can be lost, and so forth. By hiring a criminal defense lawyer, he can begin gathering all exculpatory evidence in your favor and preserve it for future use at trial.

A lawyer can also begin planning how to make an argument for bail. Depending on what our clients are charged with, it could take some effort to convince a judge that our client is not a flight risk. The more time we have to go over your criminal history and the facts of the case, the better.

A Lawyer Can Sometimes Keep Charges from Being Filed

Your attorney can review the evidence and find all the holes in the state’s case before any charges are filed. Your attorney can then go to the prosecutor and argue that no charges should be filed against you because the case is so weak.

This strategy is not effective in every case. But when successful, our clients avoid even an arrest. They also avoid the expense of trial. Instead, they can go about their lives as if the crime had never happened.

Hire an Experienced Criminal Defense Lawyer in Collin County

It is never too early to have a criminal attorney by your side during a criminal investigation. At Rosenthal & Wadas, our Collin County criminal lawyers have represented clients at all stages of criminal proceedings, and we know how to press our clients’ advantage at each and every stage.

For more about how we defend cases, please contact us. We can discuss what you know about the case and how to handle police interviews. We can also attend any interview with you and make sure that you do not hand the state any evidence on a silver platter.

Posted in Criminal Defense

What are the Penalties for Interfering with an Emergency Call?

Emergency Call

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Preventing or otherwise impeding a person from making an emergency call is a crime in Texas. Those who are convicted face serious penalties, which is a testament to how seriously Texas takes this offense. Many people end up interfering with an emergency call because they do not even know that this is a crime in the first place, but they could soon find themselves in jail and facing an uncertain legal future.

If you’ve been accused of interfering with an emergency call, you need to reach out to a Collin County criminal defense attorney immediately. The sooner you begin building a defense, the better your chances of beating the charge.

What is Interfering with an Emergency Call?

Texas Penal Code Section 42.062 lays out the elements of the offense:

  • A person knowingly interferes or blocks another person’s attempt to make an emergency call or to request assistance from the police, hospital, or other entity which is primarily focused on providing safety to individuals.
  • A person recklessly damages a telephone that a person could have otherwise used to make an emergency call.

Let’s look at some examples:

Example A: A boyfriend beats up his girlfriend and then grabs the phone out of her hands when he sees her trying to make a call for help. In this case, he is interfering with her ability to call the police, so he can be charged with interference with an emergency telephone call (in addition to domestic violence).

Example B: While attacking her boyfriend, a woman takes his cell phone and smashes it with a hammer so that he can’t call 911. Because she has recklessly damaged a phone that could be used to call the police, she could also be charged with interference with an emergency telephone call.

As you can see, the statute is broadly written, so many types of conduct could fall under the statute and be criminal.

How Serious are the Penalties?

Interfering with an emergency call is a Class A misdemeanor, which can net you the following penalties:

  • A maximum of a year in jail
  • A maximum $4,000 fine

If this is not your first conviction, then you could be charged with a felony, which would have disastrous consequences. Felons can face up to 2 years and jail and up to a $10,000 fine. Also, felons in Texas lose their right to possess a firearm.

Even if you are convicted of a misdemeanor, there are repercussions that will last long after you have repaid your debt to society. A criminal conviction will follow you around wherever you go. If you apply for a job or an apartment, for example, then your conviction could come up in a background check, making it harder for you to get a job or apartment.

What Defenses Can You Raise to this Charge?

Every case is different, so some defenses might be appropriate for one client but not for another. However, here are some of the more common defenses we have seen raised:

  • The defendant did not recklessly destroy or damage a phone. Instead, they might have damaged the phone negligently.
  • The defendant was not the person who disabled or damaged the phone. The person trying to make the call might have damaged it.
  • There was no emergency taking place that would have warranted a call to the police or 911. An emergency is defined as fear of imminent assault or damage to property.
  • The defendant did not know that the caller was dialing 911 or otherwise placing a call to request emergency assistance.

In other situations, the best defense might be to point to your clean criminal history and ask for leniency. This might be possible especially when the interference did not take place in the context of domestic violence. To determine which defense is best, contact an attorney right away.

Finding a Criminal Defense Lawyer in Collin County

If you have been picked up for domestic violence or interference with an emergency call, you need to take quick action. The decisions you make in the moments after being arrested will impact whether you can successfully beat the charge.

No decision is greater than choosing the right criminal defense attorney to represent you. Some lawyers trust the prosecutor to do the right thing for their client and let the legal process play out. Other defense attorneys understand that the state has no incentive to cut a deal with a defendant unless they can poke holes in the state’s case.

For more information, please contact us today by calling 972-369-0577.

Posted in Federal Criminal Defense

What Is Judicial Clemency?

Judge Gavel

Under Texas law, there are certain cases where a judge may set aside a defendant’s criminal conviction while they are still serving a term of community supervision (i.e., probation). This is informally known in legal circles as “judicial clemency,” although that exact term is not used in the law. As the Texas Court of Criminal Appeals explained in a 2002 decision, Cuellar v. State, judicial clemency may occur when “a trial judge believes that a person on community supervision is completely rehabilitated and is ready to re-take his place as a law-abiding member of society.”

The decision to grant judicial clemency is completely within the discretion of the trial judge. In other words, a defendant does not earn the “right” to judicial clemency based on good behavior while on probation. After all, if a person is on probation, they are expected to abide by all of the terms and conditions of their release regardless.

Below is a brief explanation of the judicial clemency process, including the cases where it is not an option, and how judicial clemency differs from other forms of clemency or pardon under Texas law.

The Basics of Judicial Clemency

Although the term “judicial clemency” is not used in any statute, it is based on a specific law, specifically Article 42A.701 of the Texas Code of Criminal Procedure. This article addresses situations where a defendant convicted of a criminal offense may seek a “reduction or termination” of his or her probation.

By law, a defendant is only eligible to seek a reduction or termination after “satisfactorily” completing at least one-third of their original probation term or at least two years, whichever is less. For example, if a defendant is sentenced to serve three years community supervision, she could ask for a reduction or termination after just one year. A defendant may also request judicial clemency after completing the full term of his or her probation, but this typically must be done within 30 days of the end of community supervision.

Once a defendant requests a review of their probation, the judge must notify the district attorney. The judge will then conduct a review to decide whether or not the defendant has successfully complied with their probation.

If the court does decide to discharge the defendant from community supervision, the judge must then decide whether or not to “set aside” the original conviction, i.e. grant judicial clemency. This applies to both guilty pleas entered voluntarily by the defendant and jury verdicts following a trial. If clemency is granted, it has the legal effect of dismissing “the accusation, complaint, information, or indictment against the defendant.” The defendant is then “released from all penalties and disabilities resulting from the offense.”

Now, this does not completely erase the defendant’s criminal record in the way an expunction would. There is still a public record of the original arrest, but the case will be listed as “dismissed” and not resulting in a conviction. And proof of the original conviction (or guilty plea) will still be available to the court in the event the defendant is convicted of a future crime. Texas officials may also consider the arrest in making certain occupational licensing decisions regarding the defendant.

On the other hand, judicial clemency can restore a person’s legal right to possess and carry firearms under Texas law. Indeed, this was the subject of the Cuellar case. The defendant pleaded guilty to felony drug possession in 1976. A judge set aside the conviction in 1981 after the defendant completed his five-year community supervision term. Fifteen years later, the defendant was charged with “unlawful possession of a firearm by a felon.” But the Court of Criminal Appeals held that since the conviction was set aside, it did not bar the defendant from owning a gun.

When Is Judicial Clemency in Texas Not an Option?

Although most felony convictions can be set aside under the process discussed above, the law does not permit the use of judicial clemency for the following crimes:

  • intoxication-related offenses, including DWI, intoxication assault, and intoxication manslaughter;
  • any offense where conviction requires the defendant to register as a sex offender; or
  • so-called 3G felonies, such as capital murder, murder, aggravated robbery, or violent crimes involving injury to a child, elderly, or disabled person.

Judicial vs. Executive Clemency

Judicial clemency should not be confused with the executive clemency power granted to the governor of Texas. The Texas Constitution authorizes the governor to issue “reprieves and commutations of punishment and pardons” to a convicted defendant on the recommendation of the state Board of Pardons and Paroles. This clemency power is much broader in scope than judicial clemency, as the governor can issue full pardons for any crime–aside from treason and offenses subject to impeachment–including 3G felonies like murder.

If you have additional questions or concerns about how the judicial clemency process works in Texas and would like to speak with a qualified Collin County criminal defense lawyer, contact Rosenthal & Wadas, PLLC today. Our criminal lawyers in Collin County are eager to assist you throughout each step of your case.

Posted in Criminal Defense, Federal 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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