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

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xtx. xx. xxt. 9. THE RELIABILIry OF THE FST'S DESCRIBED IN THE SEARCH WARRANT AFFIDAVIT ARE ATTACKED = NOT FATAL . . . 10. FAXED WARRANT WHERE OATH WAS ADMINISTERED BY MAGISTRATE TO AFFIANT OVER THE PHONE . . . . (a) NOT FATAL (b) FArAL 11. THE JURISDICTION OF THE STATUTORY COUNTY COURT IS ATTACKED AND FOUND TO BE LIMITED 12. SEARCH WARRANT AFFIDAVIT ATTACKED FOR HAVING INSUFFICIENT FACTS TO SUPPORT PC AND FOR FAILING TO NOTE DATEffIME OF STOP (a) NoT FATAL (b) FArAL 13. 14. FAILURE TO SPECIFYWHAT POLICE INTEND TO DO WITH BLOOD SAMPLE = NOT FATAL JURISDICTION OF MUNICIPAL POLICE DEPARTMENT AS L. M. N. o. REGARDS EXECUTION OF WARMNT IS COUNTY WIDE DIC-24 NEED NOT BE READ BEFORE MANDATORY BLOOD DRAW ONLY ONE SAMPLE MAY BE DRAWN UNDER MANDATORY BLOOD LAW WHEN DEFENDANT CONSENTS.724.012 OF TRANSPORTATION CODE DOES NOT APPLY OFFICER BLOOD DRAW PROCEDURE "NOT UNREASONABLE" UNDER THE 4TH AMENDMENT AND NON-MEDICAL ENVIRONMENT IS UPHELD P. PROPER TO BRING OUT IN QUESTIONING DEFENDANT'S FAILURE TO ASK TO RETEST BLOOD SAMPLE EXPERT TESTIMONY A. STATE EXPERT OPINION TESTIMONY.0B = LOSS OF NORMAL = PROPER B. TMPEACHMENT - pRtOR TEST|MONY (JOHN CASTLE) c. EXPERT TESTIMONY ABOUT DWI VIDEO PROPERLY EXCLUDED D. DEFENSE EXPERT OPENED DOORTO DEFENDANT'SALCOHOLISM . . . . . . . . E. RESULTS OF DEFENSE EXPERT'S EXPERIMENT PROPERLY EXCLUDED DEFENSES A. ENTRAPMENTDEFENSE.... B. NECESSITY DEFENSE C. INVOLUNTARY INTOXICATION DEFENSE/INSTRUCTION D. INSANITY/AUTOMOTISM ... E. "VOLUNTARY ACT' INSTRUCTION 1. NO .. 2. YES, INSTRUCTION ON INVOLUNTARYACT SHOULD HAVE BEEN GIVEN JURY CHARGE A. B. OBSERVATION PERIOD 1. NO CHARGE REQUIRED 2. CHARGE REQUIRED ALTERNATIVE CAUSATION = NO CHARGE 1. INGENERAL.... C. D. 2. FATIGUE CHARGE ON WORKING CONDITION OF INSTRUMENT. . . 1. NOT ENTITLED TO SUCH A CHARGE 2. ENTITLED TO CHARGE AS TO DPS REGULATIONS NO CHARGE ON BLOOD OR URINE IN BREATH TEST CASE 1X 103 103 103 104 104 104 104 105 105 105 106 106 106 107 107 108 108 108 108 't08 109 109 109 109 110 112 113 113 113 114 114 1',l4 114 114 114 114 115 115 115 115
E, F. G. H. t. J. K. L. M. N. o. P. a. R. S. T. U. V. SYNERGISTIC CHARGES 115 1. PROPER 115 2. NOTFOR'FATIGUE" .....,..116 3. NOT FOR'THEORY OF INTOXICATION NOT ALLEGED' 116 GENERAL VERDICT FORM 116 SEPARATE VERDICT FORMS? 117 DRIVER'S LICENSE SUSPENSION INSTRUCTION . MOTOR VEHICLE AS A DEADLY WEAPON IN A DWI CASE 1. IS PROPER 117 117 117 2. MAYORMAYNOTBEPROPER? .... 118 3. IS NOT PROPER 119 4. NOTICE MUST BE ADEQUATE AND TIMELY NO DEFINITION OF "NORMAL USE" SHOULD BE GIVEN NO SUCH THING AS "ATTEMPTED DWI' . 119 120 120 NO CHARGE ON INVOLUNTARY INTOXICATION AND AUTOMATISM DEFENSE IN THIS DWYPRESCRIPTION DRUG CASE NO MEDICAL EXCUSE INSTRUCTION . . NO JURY INSTRUCTION ON FAILURE TO PRESERVE EVIDENCE . . . . DEFINITION OF "OPERATING" IN CHARGE 1. NOT ERRORTO DENYREQUEST 2. NOT ERROR TO GIVE JURY DEFINITION OF 'OPERATING' NO JURY INSTRUCTION ON BTR CONSIDERED AS EVIDENCE . . . ERROR TO CHARGE ON CONCURRENT CAUSATION IN DWI CASE NOT ENTITLED TO A CCP 38.23 INSTRUCTION PER SE DEFINITION OPTION SHOULD BE SUBMITTED-LIMITING INSTRUCTION IMPROPER PROPER TO SUBMIT INSTRUCTION THAT INTOXICATION CAUSED BY DRUGS DEFINITION IN JURY INSTRUCTION SHOULD BE LIMITED TO EVIDENCE PRESENTED AT TRIAL WHEN CHARGE SPECIFICALLY USES SUBJECTIVE DEFINITION OF INTOXICATION AND NOT PER SE DEFINITION, THE PER SE DEFINITION SHOULD NOT BE IN JURY INSTRUCTION . . XXII. JURYARGUMENT PERMISSIBLE ... 1. DEFENDANT FAILEDTO BLOW BECAUSE HE KNEW HE WOULD FAIL . 2. 3. 4. 5. DEFENDANT'S FAILURE TO DO FST'S ON VIDEO DEFENDANT'S REFUSAL TO DO ANYTHING (i.e. FST'S, BT) . . DEFENDANT'S TRYING TO LOOK GOOD ON TAPE JURYDOES NOT HAVETO BE UNANIMOUS ON THEORYOF INTOXICATION.. 6. TESTIMONYREGARDINGAND.ARGUMENTABOUT B. DEFENDANT'S FAILURE TO CALL ITS EXPERTWAS PROPER . . . . . . . . IMPERMISSIBLE . XXIII. PROBATION ELIGIBLE 120 120 121 121 121 121 122 122 122 XXIV. PRIORS/ENHANCEMENTS .... A. PROVING DEFENDANT IS PERSON NAMED IN JUDGMENT 1. I.D. MUST BE BASED ON MORE THAN "SAME NAME' 2. BOOK-IN CARD MUST BE TIED TO JUDGMENT AND SENTENCE 127 127 127 127 3. PROOF OF ID POSSIBLE WITHOUT PRINTS OR PHOTOS . . . . 127 123 124 124 125 125 125 125 125 125 126 126 126 126 126
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: C. D. STATUTORY REQUIREMENTS FOR DR
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 and 104:
esu/fs. As long as fhe operator kno
Page 105 and 106:
suggesf that he was physically or m
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
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