The question is, “What is right for you?”
For most people, the legal system is unknown territory. Naturally, when you find yourself or a loved one in a legal crisis, you have many questions. The information below can answer a lot of them.
One thing we pride ourselves on, though, is our accessibility to our clients. Please feel free to call with important questions. We routinely give our cell numbers to our clients for that very purpose.
Criminal Charges in State Court
Criminal Charges in Federal Court
White Collar Defense
The practice of criminal defense has become highly specialized…
As the criminal law becomes more technical, wide-ranging and complex, more and more people are finding themselves in the criminal justice system. This is particularly true in the federal courts, where sometimes a person at the wrong end of a business deal gone bad may find himself indicted for a white collar offense such as mail fraud, wire fraud, or health care fraud. At the same time, new technology and investigative techniques makes virtually every major criminal case more complex. In a murder case, the criminal defense lawyer may find himself facing a medical examiner, one or more crime scene investigators, police officers and detectives, experts in DNA, crime scene reconstruction, toxicology, video analysis and possibly psychology or psychiatry.
Ordinarily, the life span of a criminal case includes the following steps:
At the state level, the police will either receive a complaint or witness an alleged offense and make an arrest. The initial report by a police officer may then go to a detective, as usually happens in more serious state felony offenses. In the case of misdemeanors, such as DWI, there is no investigation to speak of after the initial police-citizen contact. Usually at the state level, the investigation will be conducted solely by the police and be more or less complete when the police hand the file to the district attorney for prosecution. This does not mean the case will not be complex. In general, the more serious the crime, the more intense and thorough the police investigation.
The state prosecuting authorities are also conducting more white collar investigations (fraud, identity theft, etc.). These investigations may be conducted by the Attorney General or specialized units in the District Attorney’s Office and may be fairly simple to very complex. Oftentimes, the investigators may also be accountants or retired IRS agents.
In the federal system, the investigations are conducted by any of the several federal law enforcement agencies such as the FBI, ATF, DEA, or Postal Inspector. There are also investigative sections in other agencies that are not primarily designed for law enforcement investigation such as the USDA (United States Department of Agriculture) and the FAA (Federal Aviation Administration). Unlike the state system, where the police will often do the entire investigation and then hand the case off to a district attorney, a federal investigation will often be overseen by an Assistant United States Attorney virtually from the start. These investigations also tend to be much longer and more thorough than those done at the state level.
In either system, if you are under investigation a detective or other law enforcement officer may call you wanting to “get your side of the story.” You should NEVER speak to someone in law enforcement before you consult an attorney. Having an attorney is your right. Don’t worry about “looking guilty.” A law enforcement officer investigating you is not your friend. Going it alone could have a devastating effect on your case.
The Prosecutor Accepts the Case
For the most part, prosecutors at the state level are district attorneys and county attorneys and federal prosecutors are United States Attorneys.
When a state police officer files a case, what he does is simply puts it in the hands of a district or county attorney. Misdemeanors then go directly to a court. Felonies must be indicted, which means that they must go to a grand jury. If the grand jury chooses to indict the case, then the case is assigned to a district court. At the state level, a person may be arrested either when (or before) charges are filed (such is the usual case in Tarrant County), or once they are indicted (which is the practice of many of the less urban counties).
At the federal level, the same Assistant United States Attorney who has overseen the investigation will take the case before a grand jury. In the federal system, as with the state, a person may be arrested either before or after indictment, depending on the circumstances and the type of criminal offense. Oftentimes the indictment is sealed (not accessible to the public) until the arrest is made.
Corporations may also be indicted at both the state and federal level for a number of offenses. In “white collar” cases (most commonly some form of alleged fraud), it is not unusual to see both the corporation and several of its officers or high ranking employees in the same indictment. Those cases are often quite complex and require each person and the corporation to have separate, highly competent counsel.
Once on the court’s docket, the case can only go one of three ways: trial, guilty plea, and, sometimes, a dismissal. Whether at the state or federal level, one can expect the prosecutor to do his or her utmost to win his case. Oftentimes, most of the prosecutor’s witnesses will be connected with law enforcement and well practiced at testifying in front of a jury. It is essential that the criminal defense attorney spend whatever time it takes to prepare for trial. There will usually be some flaws in the prosecution’s case, but finding them takes investigation, preparation and creativity.
Even where a guilty plea results, the need for preparation cannot be overstated. Usually the most advantageous plea agreement can only be achieved when the prosecutor knows you are very serious about trying the case.
Either the person charged with an offense or, in limited instances, the government may appeal an adverse ruling or verdict. The appeal is taken first to the court of appeals. The party that does not prevail at that level can then take the case to the next level. In Texas, the highest state criminal appellate court is the Texas Court of Criminal Appeals. In all cases the highest appellate court in the nation is the United States Supreme Court.
An appeal is not a re-trial of the case. In an appeal, usually a complaint is made to the court of appeals that the trial judge made mistakes. The appeal is based on the record at trial and the briefs of the parties. Preparing a compelling appellate brief requires an intimate familiarity with the law and a lot of creativity on the part of the lawyer. It also takes a lot of time.
The Writ of Habeas Corpus is the remedy of last resort. It is limited to raising violations of a person’s constitutional rights. Generally seen in writs are complaints regarding deficient performance of trial or appellate counsel, violations of due process, or allegations of serious police or prosecutor misconduct. Writs generally require a whole new round of investigation, since the nature of most complaints was that these violations were not discovered during the trial or appeal processes.
Each of these stages presents opportunities for the criminal defense lawyer and his client. The goal is to get the client out of the criminal justice system as quickly as possible with the best possible result. This means that the attorney must work the system and cannot simply react to it. The lawyer should, where possible, deal with police detectives before charges are brought in an attempt to head off a criminal case. Sometimes the lawyer may also prepare a case to present to the grand jury with the goal of avoiding an indictment. Once a case is filed, the attorney should always be thinking of a way to creatively dispose of a case where a dismissal or reduced charge is possible. And where a trial or appeal is necessary – investigate, prepare and fight.
Breach of Contract
Defamation/Invasion of Privacy
Theft of Trade Secrets
Civil Litigation is not necessarily more complex than criminal defense, but there is quite a bit more formality, procedure and rules and the cases tend to take quite a bit longer to resolve. The same qualities that define a successful trial lawyer, though, do not vary between civil and criminal trial practice. The need for aggressive and creative representation is identical.
How A Civil Case is Started
Quite simply, the Plaintiff files a lawsuit. At the state level, depending on the dollar amount one is suing for, the suit may go into a County Court at Law or a State District Court. Very small suits may be prosecuted in the Justice Courts. The type of relief the client desires can also dictate where and in which courts the suit must be filed. A civil case may be maintained in either State or Federal Court. The client needs to know that where a suit is filed is something that must be carefully considered. It may be that due to the rules of jurisdiction and venue the client has no choice. However, the client usually has some latitude and you and your attorney must consider the advantages and possible disadvantages of each forum.
In a general sense, discovery includes depositions and “paper discovery,” which seeks documents and answers to written questions. You can also, in the right case, seek other investigative tools. Discovery – particularly “paper discovery” – can sometimes be complicated (such as electronic discovery where you receive a massive amount of information) but, more often, the discovery is simple but the other side simply resists it in a number of different ways. Therefore, the number one attribute for successful discovery is not how clever you are at asking for it, but how willing you are to fight to get what you’ve asked for. The law favors open discovery, but oftentimes you have to be willing to go to the judge to make the other side comply.
In a civil case, just as in a criminal case, you are likely to have two possible outcomes – settlement or trial. In criminal cases, settlement is some kind of a plea bargain or agreed dismissal. In a civil case, it is almost invariably a monetary settlement, although it could be a permanent injunction or other equitable remedy. Many times, the settlement will be the product of mediation. There can be very good reasons for settling a lawsuit, not the least of which is certainty and finality. However, the client needs to know that in all cases whether to settle or not is the client’s decision. The lawyer may advise, but not decide this important issue.
Deceptive Trade Practices
State and Federal Wage and Overtime Claims
Protecting consumers is one of the most important goals of the civil justice system. And while tort reform since the mid-1990s has taken some of the teeth out of the robust consumer protections we once had in Texas, there are still many remedies for the consumer who is taken advantage of. Consumers and employees are vulnerable to being ripped off because of an imbalance of power between they and the generally more powerful or more knowledgeable banks, contractors, or other merchants who deal with them. A good lawyer will even the scales. If you feel you have been taken advantage of, give us a call.
Administrative License Revocation
The Collateral Consequences
Getting a DWI (Driving While Intoxicated) is serious! You need to take it seriously. So should your lawyer. Even a conviction for a first-time DWI can carry serious consequences, not the least of which is $1,000 or more per year for three years just to keep your driver’s license.
If you are like the vast majority of those who get arrested for DWI, this is the ONLY way that you would ever have come into contact with the criminal justice system. Only because Texas DWI laws exist, do many people who would never dream of breaking the law find themselves arrested, photographed, fingerprinted, and generally “treated like criminals.” This is serious business. And once you have posted your bond, the whole process is really just beginning.
The Driving While Intoxicated Laws
A first-time DWI is a “Class B Misdemeanor.” This means it carries a criminal penalty of up to 6 months in the county jail and a fine of up to $2,000.
A second DWI is a “Class A Misdemeanor.” This grade of offense carries up to a year in county jail and up to a $4,000 fine.
A third DWI is a “Third Degree Felony,” which carries a penalty of up to ten years in prison and up to a $10,000 fine. That is penitentiary time, not county jail time.
A conviction for any of these also carries a mandatory driver’s license suspension of at least a year.
Administrative License Revocation
Since 1995, the State of Texas has had adopted “Administrative License Revocation” or “ALR.” If you have been arrested for DWI, you know the police officer serves on you a “Notice of Suspension / Temporary Driving Permit” and takes your license away from you.
From the date of your arrest, you then have 15 days to request a hearing on what will otherwise be a mandatory driver’s license suspension from at least 90 days for failing a breath test, to at least 180 days for refusing to take a breath test. If this is not your first DWI arrest, then the suspension times increase dramatically.
IT IS EXTREMELY IMPORTANT TO GET A HEARING REQUESTED AND NOT JUST LET THE 15 DAYS GO BY!!
The ALR hearing is an opportunity that should be exploited. You have the opportunity to make the arresting officer appear at the hearing and give testimony. This could come in handy at a future trial. If you took and failed a breath test, then you have the opportunity to make the breath test operator and technical supervisor show up as well. And if you request their presence and they don’t show up, you win. If they do show up and you do not prevail, at least you have some testimony you may be able to use later in fighting your DWI case.
The Collateral Consequences
“Collateral consequences” are those not specifically outlined in the criminal codes, but nonetheless attach to a DWI conviction from other sources.
I already mentioned the driver’s license “surcharge” of at least $1,000 per year for three years just to keep your license. That is a “collateral consequence” and a bad one at that. This surcharge was enacted by the 2003 Legislature.
A DWI conviction carries other consequences as well. For instance, if your insurance company finds out you are convicted of DWI, then it will no doubt drop you and you will have to get “high risk” insurance at a vastly higher cost. Car rental companies may not rent a car to you if they know you are convicted of DWI. If you have a job that requires you to be under a fleet insurance policy, such as with a trucking company, you may lose your job if the insurer finds out you have a DWI and drops you. The list goes on.
The Moral of the Story – FIGHT!
I always tell prospective clients that I go into a DWI case with the mindset that we are going to fight it. I collect all the information I can so that you can be in the best position possible to make the crucial decision whether you want to go to trial or not.
There are two reasons I go into every DWI case with the intent of fighting it: (1) the consequences I have already outlined above are severe – too severe, really; and (2) DWI cases are WINNABLE!
Remember those tests you were given on the roadside? Here is the breakdown on the accuracy of those tests as determined by the National Highway Traffic Safety Administration (the agency that dreamed them up in the first place):
Horizontal Gaze Nystagmus (the “eye test”): 77% accurate
The Walk & Turn (the “walk the line” test): 68% accurate
The One Leg Stand (“count to 30”): 65% accurate
And these percentages are really only valid when the tests are given under “laboratory conditions.” Needless to say, tests given in questionable lighting on the side of the road on what was in all likelihood not a flat surface and with traffic whizzing by are not given under “laboratory conditions.”
The effective criminal defense lawyer with experience trying DWI cases can make the jury understand this and thus be more apt to discount the “field sobriety tests,” as they are called.
As you have probably guessed, most of the state’s witnesses in a DWI case are going to be police officers. These officers have testified time and time again in DWI trials. Effective cross-examination of these officers requires experience with DWI and the issues surrounding these particular cases (such as the field sobriety tests). But the good news is that when your attorney has this experience and knowledge, you will almost always have a chance to win.
Even a “breath test failure” case is not a lost cause. The Intoxilyzer 5000 (the breath test machine, or “black box”) has some scientific limitations. For instance, it assumes that everybody on the planet has the same body temperature, metabolism, and physiology. The police will deny that this is a limitation, but doesn’t it seem like one? Further, the machine itself is designed to have a container attached which would save the breath sample for re-testing, but Texas has decided not to use it. If you took a breath test, remember that you got two “scores?” If those two scores are within .02 of each other, then it is considered by law enforcement to be a valid test. Thus, if you blew .081 and then .100, that’s good enough. Doesn’t that seem like a “margin of error” to you?
More recently, many police departments have begun seeking warrants to draw blood if a person refuses to take a breath test. Blood testing itself involves a whole different area of science which needs to be applied correctly by everyone involved in the arrest and prosecution. Further, the taking of the blood sample, as well as everything else taken from you including your time, implicates Constitutional protections. The police and prosecutors need to do it correctly in the first place.
Needless to say, my philosophy is that a DWI should be fought, unless after full and careful consideration, you, the client, decide otherwise. Call me.