Most people have a general understanding of the court process after a formal charge has been filed.  That is to say, most of us understand that when one is formally accused of a crime by the government, one has the right to a jury trial, to require the government to present proof beyond a reasonable doubt to a jury, to present witnesses one's own behalf and that the accused has the right to confront and cross examine witnesses against them that are presented by the government.

What about that period of time between the moment when the police place someone under arrest and the moment the arrested person is actually in court to defend the charge against them?   For many people, that aspect of the process is murky or confusing or both.  Here is a brief summary of that process that I hope answers some of the questions you might have.

When the police arrest someone, they have to bring the accused before a magistrate within forty eight hours.  The magistrate makes a preliminary determination as to whether the police had probable cause to arrest someone.  If he or she finds that the arrest was unlawful, the arrested person is discharged.  If the magistrate finds that the arrest was lawful and supported by probable cause, the magistrate will inform the arrested person of several important issues.  The issues that will be discussed by the magistrate include the accusation made against them, their right to remain silent, and their right to an attorney among other things.  At this point the magistrate also sets a bond.  If the person is unable to bond out by posting a cash or surety bond, they will be transported to the Collin county jail in McKinney. 

When a person is held and unable to make bond, they may try to raise bond, seek a bond reduction in the appropriate court, or if the case is not formally filed or indicted within certain time frames, they may be eligible for a reduced or personal bond.   In a felony case, if the arrested person is unable to make bond for ninety days and the state is not ready for trial, i.e. the arrested person has not been indicted by the Grand Jury, the arrested person is generally entitled to a reduced or personal bond.  Similarly, in a misdemeanor case the state must be ready within fifteen day for a Class B misdemeanor and thirty days for a Class A misdemeanor or the arrested person will generally be entitled to a reduced or personal bond. 

 As you are probably aware, the arrest and arraignment is not the end of the process, in fact it is really just the beginning.  Following arrest, the investigating police agency will usually file a case with the District Attorney's Office.  If it is a misdemeanor case the District Attorney's office will prosecute by filing a document known as an "Information."  An Information is the formal charging document in a misdemeanor case.  Misdemeanor cases may be filed by the District Attorney after the case is reviewed by attorneys assigned to the  Intake division.  There is no requirement for a Grand Jury indictment in a misdemeanor case, rather they may simply be filed.  Misdemeanor cases of a grade Class B or higher are filed in the County Court at Law Clerk's office and assigned randomly to one of the six County Courts at Law that we have in Collin County. 

In a felony case, the process by which a person is formally charged is more complicated.  When the police file a felony case with the District Attorney's Office, the case is sent to its Grand Jury division.  The Grand Jury Division has several options at this point.  They may present the case as filed to a Grand Jury with the goal of seeking an indictment, the may decide not to prosecute the case, they may request additional investigation from the filing police agency, or in some unusual instances, may decide that the case should be filed as a misdemeanor.

If the District Attorney's Office decides to seek a felony indictment, the case is presented to the Grand Jury.  A Grand Jury is composed of not more than twelve citizens summoned serve as grand jurors to consider whether an indictable offense has occurred in the cases presented to them.  The grand jury proceeding is secret.  It may come as a surprise to you to learn that the arrested person whose case is being considered by the Grand Jury has no right to be present when the evidence is being presented; nor does an attorney representing an arrested person.  Only the grand jurors themselves, the attorney for the State, the bailiffs and stenographers may be present.  Generally, the arrested person may submit written material for the Grand Jury to consider.

When the Grand Jury has considered the case, a vote is taken and if at least nine members of the Grand Jury concur with the bill presented by the attorney for the State the Grand Jury has found a "true bill" and an Indictment will issue.  An indictment is the written statement of a grand jury accusing a person of a crime.  If an indictment issues the case will be filed in the District Clerk's office, assigned to one of the District Courts and a criminal prosecution will commence.  On the other hand, if less than nine of the grand jurors concur in the bill, the grand jury has issued what is referred to as a "no bill", and no indictment will issue.

Derk Wadas 

972 369 0577

The consequences for an Assault - Family Violence accusation are different in a number of ways from other misdemeanors. 

First, as soon as a person is arrested upon an allegation of Assault Family Violence and brought before a magistrate, the magistrate often issues an order known as an Emergency Protection Order (EPO) that regulates the conduct of the accused person.  The EPO frequently forbids the accused person from returning home, or coming within a certain distance of within schools, homes, and places of employment. 

  An Assault Family violence conviction may prohibit the convicted person from ever again possessing a firearm under Federal law.  Unlike most other misdemeanor offenses,  an Assault-Family violence offense- even if you receive Deferred Adjudication- can never be Non Disclosed (sealed).  This means that if you are convicted or placed on deferred for an Assault- Family violence offense you will have a permanent record of the fact of your arrest for that offense.

If you are not a U.S. Citizen and you are accused of an Assault- Family violence, you may have immigration consequences and should consult an Immigration lawyer.  Finally, a second or subsequent conviction for Assault - Family violence may subject you to a Felony level char

972 369 0577

rosenthalwadas.com

Many of the questions I am asked concern submitting to or refusing a breath or blood test in a Driving While Intoxicated case.

Generally, the law provides a DWI suspect the right to refuse, subject to several exceptions.  First, the law now authorizes the police to require the taking of a blood sample from a DWI suspect without a search warrant  in several situations.  1.  DWI- with child, 2., DWI where an accident has occurred and it results in an injury to a person other than the operator that requires them to go to the hospital. 3.  When the officer believes that the operator has committed a felony DWI, that is to say, he or she has at least two previous DWI convictions.

In addition to the above, the police may always seek a search warrant to require a blood sample whenever they have arrested a person for DWI, and believe they have probable cause that evidence of intoxication will be found in the person's blood.  This is true regardless of whether any of the above factors are present.

If the police obtain a search warrant for my blood and the results indicate an alcohol concentration over the legal limit, am I automatically guilty?

No.  A lawyer should carefully review the police officer's affidavit in support of the search warrant application, to review whether the affidavit establishes probable cause to show that evidence of intoxication will be found in a person's blood at the time of the application for the search warrant. 

There are numerous avenues to explore on this topic, and I will focus on just one right now- a recurring issue.  A lawyer should review the search warrant to make sure that the facts establish that the evidence of intoxication will be found at a particular time.  For example.

In Crider, the police officer's affidavit indicated that "[o]n or about 06-06-08" the officer observed the defendant commit the offense of DWI.  The magistrate signed the warrant on June 7, 2008 and it was executed soon thereafter.  The Court of Criminal Appeals held that in light of the potential 25 hour window between the time the crime could have occurred, and the time the warrant was executed, the information was stale and therefore the affidavit did not establish probable cause that the "evidence of intoxication would be found in appellant's blood at the time the search warrant was issued." 

 In Crider the officer did in fact state the day, month and year, but was imprecise about the time of day- leaving an objective reader of the affidavit a potential twenty five hour window of time in which the evidence of intoxication may be found.  A gap too large for the Texas Court of Criminal Appeals.

The issue of the specificity of the time in the search warrant affidavit is one issue among many that should be reviewed in a DWI case with a blood search warrant.

One of the questions I am often asked is "am I entitled to a bond on a probation revocation?"  The answer to that questions depends upon the type of probation.  In a deferred adjudication situation, one is entitled to a bond.  On ordinary communtiy supervision probation, one is not entitled to a bond setting, though in practice bonds are sometimes set. 

There are essentially two different types of probation, often called community supervision.

The first type is known as deferred adjudication.  In a deferred adjudication situation, a person is placed on community supervision with no finding, or "adjudication" of guilt.  If a person successfully completes deferred adjudication, the case is dismissed and the person avoids a conviction.  If the person is accused of violating one or more conditions of deferred adjudication community supervsion, the person's supervison officer may file what is known as a Petition to Adjudicate.  When a Petition to Adjudicate is filed, a warrant for the person's arrest is issued.  In Collin County, judges will sometimes set a bond amount when the warrant issues on a Petition to Adjudicate.

However, sometimes courts will issue a no bond warrant.  If a person is on deferred adjudication and a warrant for their arrest has issued because of the filing of a Petition to Adjudicate, the person is entitled by law to the setting of a bond.  If the Court issues a no bond warrant, an attorney may simply file paperwork asking that a resonable bond be set.

The other type of community supervision is what I refer to as ordinary or straight probation. Conceptually,  it differs from deferred adjudication in that if one is placed on straight probation, one has been convicted of the offense.  If a person is accused of violating the terms of straight probation, a document known as a Motion to Revoke may be filed and a warrant will issue.

A person is not entitled to the setting of a bond if one is arrested on a warrant that was issued due to the filing of a Motion to Revoke.  In practice, however, depending upon many factors, sometimes a judge in Collin County will set a bond upon the filing of the proper paperwork requesting that a bond be set.

In practical terms, if a person is arrested on a Motion to Revoke, it is important to move quickly to seek a bond setting so that the person may secure release from the county jail.  Otherwise, the person will be in the Collin county jail until the Motion to Revoke is resolved. 

Sentencing in federal criminal case is largely a product of the U.S. Sentencing Guidelines Manual.  For those that may not know, the Guidelines were established by Congress in the 1980s in an effort to bring uniformity and consistency to federal criminal cases.  The Guidelines established, among other things,  mandatory minimum sentences for many drug conspiracy cases.

In 1994, Congress passed the "Safety Valve" statute, 18 U.S.C section 3553(f).  The safety valve provision of Title 18 authorizes Courts to impose sentences below the statutory minimum if the defendant meets certain requirements in cases under section 21 USC 841, 844, 846, 960 or 963.

If I were to summarize that section in ordinary terms, in order to qualify for the safety valve the following must be true: 

1 no one was injured

2 the defendant has little or no criminal history

3 the defendant did not use a gun, violence or threats

4  the defendant was not an organizer, leader, manager or supervisor of the criminal conspiracy

5 the defendant submits to a debrief and is fully honest during the debrief, or is at least willing to honestly debrief should the government decline.

If the defendant meets the requirments, the U.S. Sentencing Guideline section 5C1.2 authorizes the court to sentence below the statutory mandatory minimum.  Understanding an utilizing the safety valve properly is one method of using the Guidelines to your advantage. 

It is important to remember that since the U.S. Supreme Court issued its Booker decision, the Guidelines are not mandatory, but advisory.  Nevertheless, the Guidelines are the starting point in Federal sentencing, and departures from the Guidelines must be "reasonable."  In fact, most sentences imposed by Federal Judges are still Guidelines type sentences. For this reason, it is very important for any Federal Criminal defense attorney to fully understand both the application fo the Guidelines and how to effectively present arguments for reasonable non guidelines sentences.

I noticed a newspaper article last week that discussed the potential for new and additional DWI/ drug courts for Collin County.  I was pleased to read that an additional court of this nature might be established in Collin County.

DWI/ drug courts are specialized programs for people who agree to be accepted into the program.  The DWI/drug court provides a level of intense supervision and accountability for those in the program that is above and beyond the sort of post conviction supervision typcially provided to probationers.

The DWI/drug courts are a win- win. What I mean by win-win is that the taxpayers, those funding the court system, in terms of reduced costs to the taxpayer.  The taxpayers win because by identifying appropriate candidates for the program, these type of courts can reduce the rate of recidivism for its graduates. When DWI/ drug courts graduate people who become clean and sober, those people resume their lives as working, taxpaying productive members of society. 

It is a win for the people in the DWI/drug court programs as wel,l because if they abide by the strict terms of the DWI/drug court they avoid harsher criminal penalties.  More importantly, they graduate and move on with their lives. The people in DWI/drug court are people whose drug and alochol problems have become legal problems.   

The DWI/ drug court programs appear to be an efficient use of taxpayer money in terms of dollars spend versus dollars saved.  Without the programs, many of the same people will return to court again and again each time at a cost to the limited resources of the Collin County court system .

Judge aims to expand drug court

By Kelley Chambers, kchambers@starlocalnews.com

This particular offense is frequently charged, and often misunderstood. The offense may be found at Texas Penal Code, Section 42. 062.   Essentially, to establish this offense, the State must prove

1. knowing

2. prevention or interference with another's ability to place

3.  an emergency telephone call.

The law defines emergency as "a condition or circumstance in which any individual is or is reasonably believed by the individual making a telephone call to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the telephone call to be in imminent danger of damage or destruction."

This law does not criminalize irresponsible or rude behavior.  This alleged offense often accompanies an assault charge, but not always.  In defending this type of case, it is important to determine if the state can prove that a) the accused person was knowingly trying to prevent an emergency call, and b) whether there was an emergency as that term is defined by law.

As a lawyer, I have tried several of this type of case and have frequently found that the proof of an actual emergency is often missing.  The Interfering with an Emergency call seems to be an offense, in my experience anyway, where the proof of one or more elements of this particular offense is often missing. 

In most Federal Criminal cases, if a person is convicted, the sentence will be determined by using the United States Sentencing Guidelines.  The Guidelines were created by the U.S. Congress in the 1980s.  The Guidelines were created with the goal of achieving uniformity in Federal criminal sentences across the United States.

In other words, if you are convicted and sentenced for participating in a Federal drug conspiracy case in the Eastern District of Texas, your sentence should be substantially like that of a similarly situated person in another part of the country.

The Guidelines are formulaic and they operate to calcuate a prison term using several criteria.  Broadly speaking, these can be broken down into several categories.

1.  The nature of the crime

2.  The accused person's criminal history

3. Certain aggravating or mitigating factors that may or may not be present in a particular case.

NATURE OF THE OFFENSE

The place to begin the analysis is the "base offense level", which may be found in Chapter 2 of the United States Sentencing Guidelines Manual.  Each particular crime is assigned a base offense level.  In drug conspiracy cases for example, the base offense level increases with the amount of drugs for which the accused person is responsible. 

CRIMINAL HISTORY

The base offense level is only the first step.  In order to properly analyze a likely Guidelines sentence, one must also determine the so called Criminal History Category of the accused.  This may be found in Chapter 4 of the U.S. Sentencing Guidelines.  There are several categories of Criminal History.  At the bottom, Category I is for persons with no record or little record.  Each qualifying conviction earns a set number of points, which in turn corresponds with a particular criminal history category. The more points, the higher the Criminal History Category.  The highest Criminal History Category is Category VI.

 The range of sentence prescribed for a particular base offense level under the Guidelines increases with a corresponding increase in one's Criminal History Category. Let me offer and example to illustrate the point.  If I have a case involving a Base offense Level of 15, I will be in the Guideline range of 18-24 months in prison if I am a Criminal History Category I.  Imagine instead that I have the very same case, but I am a Criminal History Category VI.  At this Criminal History Category the Guideline range for the same offense is 41-51 months.  The upper end of the Guideline range is literally more than doubled for the same exact crime. 

  For this reason, a proper and careful  assessment of one's potential Criminal History Category is extremely important.  A misinterpretation of the Guidelines regarding Criminal History category, or the failure to fully and honestly discuss all of one's criminal history can significantly impact the potential Guidelines sentence.

ADJUSTMENTS: 

Once the base offense level is determined, it is important to assess whether there are any role related, victim related, or acceptance of responsibility adjustments that may affect the base offense level.  The adjustments may be found in Chapter 3 of the U.S. Sentencing Guidelines Manual.

There are numerous adjustments that may impact the base offense level. Just a few are:

Organizer, manager, supervisor -  This is a frequently recurring role related adjustment that provides a 2 or 4 point enhancment, depending upon one's alleged role in a criminal organization.

Obstruction of justice

Protected location

There are also some victim related adjustments that may increase the base offense level in a victim related cae.

Additionally, there are acceptance of responsibility adjustments for- as it sounds- acceptance of responsibility of one's crime and role in the offense.  Typically the acceptance of responsibility adjustments may drive down the base offense level by as much as three points.  There also exists a "safety valve" in some cases which has the affect of further reducing the base offense level.  I will write about the function and operation of the safety valve in a future post.

One thing to bear in mind throughout the process in assessing the applicable Guideline sentence, is that the U.S. Sentencing Guidelines are now advisory and not mandatory.  Since 2005 when the U.S. Supreme Court decided U.S. v. Booker   the Guidelines are now advisory but not mandatory.  This means that the Court may impose a non guidelines sentence in certain situtations, so long as the sentence is "reasonable" and supported by the record. 

wadaslawoffice.com

972 562 7549

A Federal criminal case is very different than a state criminal case.  There exists a separate set of laws and processes that must be understood and carefully considered. 

The following is a broad overview of the basics, the "nuts and bolts" if you will, of the process of  a Federal Criminal Case.

The Initial Appearance

Typically, a Federal felony defendant will be brought to U.S. District Court in cusody on a complaint and will likley appear before a U.S. Magistrate Judge.   A complaint is an affidavit describing the allegations against the accused.  At the initial appearance the Magistrate Judge will inform the accused of the complaint against the person, that the person has the right to retain an attorney, the circumstances under which the person may be released, the right to a preliminary hearing and the right to remain silent.

The Court will also consider the issue of release or detention, and this topic will be covered in more detail in the Detention Hearing section. 

Preliminary Hearing or Arraignment

If unindicted,  a person is entitled to a preliminary hearing within fourteen days if in custody.  The Court will consider whether an offense was committed and whether the defendant commited it.  If the Court finds probable cause, the Court will require the defendant to appear for further proceedings.  The Court may also consider bail or release at this hearing.

The Detention Hearing  

  Bail in Federal Court is governed by the Bail Reform Act. The Court may release a person on conditions, or detain them pending trial.  In making this decision the Court must consider whether the arrested person will be a flight risk and whether the person, if released, will pose a danger to any person or the community.  If the Court makes the determination that no condition or combination of conditions of release will assure the appearance of the arrested person, or that the arrested person presents a danger to the community, the Court must detain the arrested person pending the trial of the case

  If the Government, through the U.S. Attorney's office wants the accused person detained pending trial, the prosecutor will file what's known as a Motion for Detention at the initial appearance. In Federal criminal cases, the Prosecutor is known as an Assistant U.S. Attorney. 

There are certain categories of offenses for which the law creates a presumption of pretrial detention.  Specifically, this presumption applies to drug offenses with a potential maximumpenalty of ten years or more. This means that the law presumes that the arrested person must be detained you must present evidence at a Detention hearing that rebuts this presumption.   

Pretrial Motions

There are a number of different pretrial Motions that may be filed a defendant in a Federal criminal case depending upon the circumstances of the particular case.  Examples of some common pretrial motions are:

Motion to Suppress.  A Motion to Suprress is a filing in the court in which te accused person is asking the judge so exclude certain evidence or statements( prevent the Government fom presenting the evidence agains the defenant at trial) due to violations of law in the way that the Government collected the evidence.

Motion for Discovery.  A Motion for Discovery asks the Court to Order the Government to disclose to the accused person evidence that the Government has in its possession concerning the accused person.  Discovey in Federal cases is regulated by Federal Rule of Criminal Procedure 16.  Typically, the defendant does not need to file a formal Motion for Discovery, rather Rule 16 requires the Governmen to provide discovery as a matter of course.

Motion in Limine.  A Motion in Limine is a Motion that aks the Court to make pretrial rulings on evidentiary matters that are likely to arise at trial.

Additional pretrial motions is a Federal criminal case might include, among others, a Motion for a Bill of Particulars, Motion to Dismiss and Motion to Sever.

Plea

A Federal criminal defendant has the right to be informed of every plea offer that is issued by the Assistant U.S. Attorney.  A Federal criminal defendant has the absolute right to a jury trial, among other rights discussed more fully in the trial section. 

 A Federal criminal defendant that is considering entering a plea of guilty to a federal indictment should be sure that they have fully considered the indictment, the likely admissable evidence against them,  and Sentencing Guideline range that will likely apply to their case.  A Federal criminal defendant should discuss all of these matters in detail with his or her attorney.  It is the accused person's decision alone as to whether to proceed to trial or to plead guilty.

Trial

A Federal criminal defendant has an absolute right to a jury trial that is guaranteed to them by the U.S. Constitution.  The right to a jury trial includes the right to remain silent, to confront the witnesses against them, to require the Government to present proof beyond a reasonable doubt and to present witnesses and admissible evidence on their own behalf.

  In addition, a person accused of a Federal felony crime has a right to a jury of twelve persons and a unanimous verdict on each and every element of the charged crime.  If the jury is not persuaded beyond a reaonable doubt, the defendant is entitled to a not guilty verdict.  If the jury finds the defendant guilty, the Sentencing process is triggered.

Sentencing

Followig a guilty plea to a Federal indictment or a guilty verdict, the U.S. Probation office will prepare a Presentence Investigation Report for use by the Court in sentecing.  The Presentence Investigation Report (PSR) will address the facts of the case and the defendant's role in the offense.  In addition it will analyze the guideline range applicable to the defendant according to the advisory U.S. Sentencing Guidelines. 

The PSR will be disclosed to the defendant and his or her lawyer.  The defendant has a certain time period in which to file objections to the PSR.  The objections may be either based on the law (contending the the PSR misundertands or misapplies the law) or on the facts alleged in the PSR.  If the defendant timely files objections, the Court must rule on the factual objections or indicate that is not relying on the disputed facts in assessing sentence.

The sentencing itself will largely be a product of the United States Sentencing Guidelines.  The  process by which a Court assesses the applicable Guideline range will be the subject of a future blog post.  In assessing sentence the court must consider the applicable guideline range as well as the factors set out in 18 U.S.C. 3553(a). 

Before the Court imposes sentence, the defendant has the right to address the Court.