Driving While Intoxicated Case Law Update - Texas District ...

More documents

Recommendations

Info

XVIII. BLOOD TEST A. MANDATORY BLOOD "REASONABLE BELIEF'' STANDARD 1. MET Gattis v. State,2004 WL 2358455 (Tex.App.-Houston [14th Dist.] 2004)(not designated for publication). Where several officers are involved, the sum of the information known to the cooperating officers at the time of arrest is fo be considered in determining if there is a reasonable belief that the accident occurred as a resu/f of defendant's intoxication. Badqett v. State, 42 S.W.3d 136 (Tex.Crim.App. 2001). Officer's "reasonable belief'that the accident occurred as the result of defendant's intoxication must be based on something more than the mere fbict that the accident involved an intoxicated driver. Rather there must be specifrc and articulable facts that the intoxication caused the accident. That belief may be based upon a number of factors including but not limited to: t,rrifness interuiews, conclusions drawn from experience, obseruations made atthe accident scene, determinations by reconstruction team. The Court of CriminalAppeals reversed the lower court's holding that specific evidence that "intoxicated" driver was at fault was not required. Broadnax v. State, 995 S.W.2d 900 (Tex.App.-Austin 1999, no pet.). ln this case there was a high speed wreck in which a passenger in the vehicle was seriously iniured. After detecting alcohol on defendant's breath and considering the circumstances of the wreck, the officer determined the defendant was intoxicated, put him in custody, and informed him a mandatory specimen would be taken. Defendant was read the mandatory blood warning and consented to the sample. The significance of the holding is that without FSIs and evidence other than the circumstances of the wreck observable at the scene, the Court held that a mandatory blood specimen could have been taken and that thle defendanf's consent removed the need of the Sfafe fo prove that statute applied. Mitchellv. State,821 S.W.2d 420 (Tex.App.-Austin 1991, pet. ref'd). Court hetd officer had "reasonable belief'based on facts obserued and information received from others at the scene of the accident. 2. NOT MET State v. Moselv,2011WL 4506106 (Tex.App.-Austin 2011). Where officers atthescene of a crash did not perform fietd sobriefyfesfs on the defendant, did not observe him slur hr.s speech, or have trouble maintaining his balance, or do anything e/se fo 90
suggesf that he was physically or mentally impaired, and where both officerstestifled thatthey did not form an opinion as to whether defendant was intoxicated, and did not read the DIC-24 to him, there was insufficient basis to arrest defendant and a mandatory blood draw was not proper. B. ARREST AT THE HOSPITAL 1. RESTRAINT WAS SUFFICIENT Gattis v. State,2004 WL 2358455 (Tex.App.-Houston [14th Dist.] 2004)(not designated for publication). Ihls was an intoxication manslaughter case where the defendant was transported to the hospital where an officer requested mandatory blood draw. The defendant attacked the legal basis forfhe draw claiming the defendant was not under arrest at the hospital and as proof pointed out no charge was filed at the time of the defendant's release ftom the hospital. The court found that when the officertold the defendant he was under arrest, the defendantwas restrained to a hospital bed and that although the restraint was done for medical purposeg ff stilt constituted a restriction of movement sufficient to be perceived as an arrest. 2. LATER RELEASE DID NOT NEGATE Williams v. State, 2004 WL 434622 (Tex.App.-Dallas 2004, pet. ref'd) (Not designated for publication). Gattis v. State,2004 WL 2358455 (Tex.App.-Houston [14th Dist.] 2004) (Not designated for publication). The fact that'the officers, after obtaining the blood sample and learning appellant would not be released immediately from the hospital, decided not to stay with appellant and released him ftom their custody does not affect the conclusion that appellant was under arrest at the time the officers requested the sample. C. STATUTORY REQUIREMENTS FOR DRAWING MANDATORY BLOOD DO NOT APPLY 1. WHEN DEFENDANT CONSENTS Doty v. State, 2005 WL 1240697 (Tex.App.-Austin May 26,2005)(mem.op., Not designated for publicaiton), pet. dism'd, improvidently granted, No. PD-1159-05, 2007 WL 841112 (Tex. Crim.App.2007)( Not designated for publication). Ramos v. State, 124 S.W.3d 326 (Tex.App.-Fort Worth 2003, pet. ref'd). Bennett v. State ,723 S.W.2d 359 (Tex.App.-Fort Worth 1987, no pet.). Defendant's consenf to blood-alcohol test relieved police officers of obligation to comply with prerequisites for compelling blood sample. 91
Page 1 and 2:
Driving While Intoxicated Case Law
Page 3 and 4:
2. DOESN'T APPLY 18 F. OFFICER'S AR
Page 5 and 6:
K, L. M. N. o. P. o. R. NOSOUND=NOP
Page 7 and 8:
F. G. H, L J. K. L. 3. NO RIGHT TO
Page 9 and 10:
C. D. STATUTORY REQUIREMENTS FOR DR
Page 11 and 12:
E, F. G. H. t. J. K. L. M. N. o. P.
Page 13 and 14:
O. IF YOU ALLEGE MORE PRIOR DWI'S T
Page 15 and 16:
I. INFORMATION/CHARGING INSTRUMENT
Page 17 and 18:
B. IMPROPER QUESTION/STATEMENT Hark
Page 19 and 20:
DWI ROADBLOCKS A. ARE ILLEGAL Holt
Page 21 and 22:
V. OCCUPATIONAL LICENSE CHART The f
Page 23 and 24:
Elisibilitv for Occupational Driver
Page 25 and 26:
Villarealv. State, 2008 WL 4367616
Page 27 and 28:
out that hearsay is generally admis
Page 29 and 30:
Foster v. State, 326 S.W.3d 609 (Te
Page 31 and 32:
anyone other than officer to help h
Page 33 and 34:
F. OFFICER'S ARREST AUTHORITY WHEN
Page 35 and 36:
occur) who observed the traffic off
Page 37 and 38:
a mile in the early morning hours.
Page 39 and 40:
State v. Arriaqa, 5 S.W.3d 804 (Tex
Page 41 and 42:
explain the margin of error or the
Page 43 and 44:
P. "FOLLOWING TOO CLOSELY''- SUFFIC
Page 45 and 46:
defendant from leaving. Officer sai
Page 47 and 48:
2. REASONABLE Bohren v. State,2011W
Page 49 and 50:
Sinqleton v. State. 91 S.W.3d 342 (
Page 51 and 52:
B. BASED ON'BREACH OF PEACE'THEORY
Page 53 and 54: IX. VIDEO A. PARTS OF PREDICATE CAN
Page 55 and 56: Mathieu v. State, 992 S.W.2d725 (Te
Page 57 and 58: F. ABSENCE OF VIDEOTAPE 1. NOT GROU
Page 59 and 60: K. NO SOUND = NO PROBLEM Aouirre v.
Page 61 and 62: R. OFFICER'S NARRATIVE ON PERFORMAN
Page 63 and 64: was effor, albeit harmless, to allo
Page 65 and 66: forfeited in the guilt-innocence ph
Page 67 and 68: ecoming the focus of a DWI investig
Page 69 and 70: Rasan v. State,642S.W.2d 489 (Tex.C
Page 71 and 72: 2. OFFICER DOES NOT HAVE TO BE AN O
Page 73 and 74: the reliability of VGN before it is
Page 75 and 76: C. WALK AND TURN = LAY WITNESS TEST
Page 77 and 78: G. FAILURE TO EXPLAIN FST'S IN DEFE
Page 79 and 80: B. PROOF OF "STATE'' Barton v. Stat
Page 81 and 82: C. INSTRUMENT CERTIFICATION 1, NEW
Page 83 and 84: G. DIC.23 & DIC.24 WARNINGS 1. REQU
Page 85 and 86: warning on refusing alcoholfesfs, b
Page 87 and 88: efusing or of giving a sample for s
Page 89 and 90: 2. NO EVIDENCE THAT ADDITIONAL WARN
Page 91 and 92: Hall v. State, 649 S.W.2d 627 (Tex.
Page 93 and 94: 3. AFTER 2 HOURS Holloway v. State,
Page 95 and 96: P. BREATH TEST ADMISSIBLE AS PROOF
Page 97 and 98: T. LOSS OF NORMAL & PER SE LAW EVID
Page 99 and 100: fesf resu/fs were not inflammatory
Page 101 and 102: 6. IMPROPER ADMISSION OF EXTRAPOLAT
Page 103: esu/fs. As long as fhe operator kno
Page 107 and 108: D. PROCEDURE FOR TAKING BLOOD SAMPL
Page 109 and 110: Thurman v. State, 861 S.W.2d 96 (Te
Page 111 and 112: 4. NOT NECESSARY TO SHOW WHO DREW T
Page 113 and 114: Biqon v. State, 252 S.W.3d 360 (Tex
Page 115 and 116: offense of DWI," the Court finds th
Page 117 and 118: 8. SEARCH WARRANT AFFIDAVIT CONTAIN
Page 119 and 120: (b) FArAL Farhart v. State, 337 S.W
Page 121 and 122: consenfs, 724.012 does not apply. H
Page 123 and 124: in the Sfafe's case-in-chief, the S
Page 125 and 126: was not the result of an involuntar
Page 127 and 128: trance-like high. The Court affirme
Page 129 and 130: C. CHARGE ON WORKING CONDITION OF I
Page 131 and 132: intoxication sefs forfh alternative
Page 133 and 134: of Appeals had misconstrued the act
Page 135 and 136: the impairment element of the Sfafe
Page 137 and 138: Sledqe v. State ,1994 WL 247961 (Te
Page 139 and 140: V. WHEN CHARGE SPECIFICALLY USES SU
Page 141 and 142: Tennerv v. State, 680 S.W.2d 629 (T
Page 143 and 144: E. ENHANCEMENT OF FELONY DWI WITH N
Page 145 and 146: Also, if stipulated that there are
Page 147 and 148: of the priors. He then complained o
Page 149 and 150: K. PROPER TO ALLEGE DATE PROBATION
Page 151 and 152: o. IF YOU ALLEGE MORE PRIOR DWI'S T
Page 153 and 154: a violation of the ex posf facto la
Page 155 and 156:
W. EXPUNCTION WILL NOT ALWAYS RENDE
Page 157 and 158:
intoxicated (DWI) from a C/ass B mi
Page 159 and 160:
Holmberq v. State, 931 S.W.2d 3(Tex
Page 161 and 162:
G. NO CONFLICT BETWEEN N'DUI'' AND
Page 163 and 164:
equipment was obserued in the vehic
Page 165 and 166:
unning, radio playing loudly, and d
Page 167 and 168:
wheels was consr.stent with the whe
Page 169 and 170:
Wriqht v. State, 932 S.W.2d 572 (Te
Page 171 and 172:
Bucek v. State ,724 S.W .2d 129 (Te
Page 173 and 174:
concerning how recently the vehicle
Page 175 and 176:
B. DENIAL OF PROBATION DUE TO LANGU
Page 177 and 178:
alcohol by calling a sysfem adminis
Page 179 and 180:
Avfor v. State, 2011 WL 1659887 (Te
Page 181 and 182:
Carrasco v. State,712S.W.2d 120 (Te
Page 183 and 184:
Drapkin v. State, 781 S.W.2d 710 (T
Page 185 and 186:
Folev v. State, 327 S.W.3d 907 (Tex
Page 187 and 188:
(Tex.Crim.App. 1988)..... .......42
Page 189 and 190:
Human v. State, 749 S.W.2d 832 {Tex
Page 191 and 192:
Lewisv.State,72S.W.3d704(Tex.App.-F
Page 193 and 194:
Moncivais v. State, 2O02WL 1445200
Page 195 and 196:
Poncev. State,828 S.W.2d 50 (Tex.Ap
Page 197 and 198:
Schaum v. State, 833 S.W.2d 644 (Te
Page 199 and 200:
State v. Gerstenkom, 239 S.W.3d 357
Page 201 and 202:
Stone v. State, 685 S.W.2d 791 (Tex
Page 203 and 204:
Vasquezv. State,2007WL 2417373 (Tex
show all

Driving While Intoxicated Case Law Update - Texas District ...

Create successful ePaper yourself

Delete template?

Save as template?