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

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preventing homicide, their objectives were nof so closely related as to justify interpreting sfafufes together, and statutes u/ere not enacted with common purpose. Lomax v. State, 233 S.W.3d 302 (Tex.Crim.App.2007), habeas relief denied, 2008 WL 5085653 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). Ihis case involved an offender who in the course of committing felony DWI was speeding, weaving in and out of traffic, tail-gating and engaging in aggressive driving whictt resulted in a crash and a death. The defense raised a number of arguments against fhe sfafe's decision to charge the defendantwrth felony murder. The rssuesrar.sed were: the indictmentfailed to allege a mental state, that fetony driving while intoxicated merges with felony murder, insufficient evidence he committed an "act clearly dangerous to human life," -all of which were rejected by the Court of Criminal Appeals. Hollin v. State,227 S.W.3d 117 (Tex.App.-Houston [1't Dist.] 2006, pet. ref'd). Ihis case involved a charge of felony murder where the underlying felony was a felony DWl. The felony murder and intoxication manslaughter sfafufes were not in pari materia, and accordingly, defendant's conduct, namely killing someone with his vehicle while he was driving under the influence, was not exclusively governed by the offense of intoxication manslaughter, and therefore it was within Sfafe's discretion to charge defendant with felony murder; penalties for felony murder and intoxication manslaughter were different, the two statutes were not contained in the same Iegislative acts, intoxication manslaughter.and felony murder did not require same elements of proof, and the sfafufes were not intended to achieve same purpose. Y. DWI WCHILD CAN BE THE UNDERLYING FELONY IN A FELONY MURDER CHARGE Biqon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008). The defendant was convicted of felony murder, intoxication manslaughter and manslaughter. The Court dismlssed the intoxication manslaughter and manslaughter as it found they were the same as the felony murder for double jeopardy purposes. The Court rejects the argument that the charge could not stand because the State failed to allege or prove a mentalsfafe. lt further rejected the argument that the act clearly dangerous was not done in furtherance of the underlying felony of DWI w/Child. Court of CriminalAppeals affirmed. Z. INVOLUNTARY MANSLAUGHTER PRIOR MAY NOT BE USED TO ENHANCE A DWI TO A FELONY Ex Parte Roemer, 215 S.W.3d 887 (Tex.Crim.App., 2007). Defendant's prior conviction for involuntary manslaughter which was an "offense relating to the operating of a motor vehicle while intoxicated," could be used to enhance his offense of driving while 142
intoxicated (DWI) from a C/ass B misdemeanorto a C/assA misdemeanor, but could not, by itself, be used to enhance his DWI offense to a felony; to raise DWI to a felony. The statute required either a prior conviction for intoxication manslaughter, not involuntary manslaughter as was used in this case. Louviere v. State abrogated by this opinion. XXV. COLLATERAL ESTOPPEL/DOUBLE JEOPARDY A. JUSTICE COURT FINDINGS State v. Groves, 837 S.W.2d 103 (Tex.Crim.App. 1992). Justice court finding that police did not have probable cause to stop vehicle will not have estoppel effect on sfafe's subseguent DWI prosecution. B. PROBATION REVOCATION HEARINGS Fuentes v. State, 880 S.W.2d 857 (Tex.App.- Amarillo 1994, pet. ref'd). Ex Parte Weaver, 880 S.W.2d 855 (Tex.App.-Fort Worth 1994, no pet.). Where new DWI is alleged in petition to revoke but waived prior to revocation hearing there is no collateral estoppelwhen court does not find sufficient evidence to revoke. NOTE: HAD IT NOT BEEN WAIVED AND A NEGATIVE FINDING BEEN ENTERED AS TO DWI ALLEGATIONlN THE PETITION THATWOULD PRECLUDE FURTHERPROSECUTION OF THE DWI CHARGE UNDER EX PARTE TARVER , 725 S.W .2d 195 (TEX. CR|M. App. 1986). C. ALR HEARINGS-NO DOUBLE JEOPARDY 1. ALR SUSPENSIONS BASED ON BREATH TESTS Ex Parte Tharp, 935 S.W.2d 157 (Tex.Crim.App. 1996). tn this case there was an ALR ticense suspension based on the defendant's having a breath test result of .10 or greater. Court held that there was no double jeopardy as the ALR disposition did not con stitute " p u n i sh me nt. " 2. ALR SUSPENSIONS BASED ON BREATH TEST REFUSALS Ex Parte Anthonv, 931 S.W.2d 664 (Tex.App.-Dallas, 1996 pet. ref'd). Ex Parte Williamson, 924 S.W .2d 41 4 (Tex.App.-San Antonio 1 996, pet. ref'd). Ex Parte Vasquez, 918 S.W.2d 73 (Tex.App.-Fort Worth 1996, pet refd). When the ALR suspensrbn is based on a breath test refusal, the "same elements" Blockburqer test is not met so there is no double jeopardy. The Court found the element that differs was that in the ALR suspension hearing, it must be proven that the defendant had an opportunity to and refused to submit to a breath test. L43
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Driving While Intoxicated Case Law
Page 3 and 4:
2. DOESN'T APPLY 18 F. OFFICER'S AR
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K, L. M. N. o. P. o. R. NOSOUND=NOP
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F. G. H, L J. K. L. 3. NO RIGHT TO
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C. D. STATUTORY REQUIREMENTS FOR DR
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E, F. G. H. t. J. K. L. M. N. o. P.
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O. IF YOU ALLEGE MORE PRIOR DWI'S T
Page 15 and 16:
I. INFORMATION/CHARGING INSTRUMENT
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B. IMPROPER QUESTION/STATEMENT Hark
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DWI ROADBLOCKS A. ARE ILLEGAL Holt
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V. OCCUPATIONAL LICENSE CHART The f
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Elisibilitv for Occupational Driver
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Villarealv. State, 2008 WL 4367616
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out that hearsay is generally admis
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Foster v. State, 326 S.W.3d 609 (Te
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anyone other than officer to help h
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F. OFFICER'S ARREST AUTHORITY WHEN
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occur) who observed the traffic off
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a mile in the early morning hours.
Page 39 and 40:
State v. Arriaqa, 5 S.W.3d 804 (Tex
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explain the margin of error or the
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P. "FOLLOWING TOO CLOSELY''- SUFFIC
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defendant from leaving. Officer sai
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2. REASONABLE Bohren v. State,2011W
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Sinqleton v. State. 91 S.W.3d 342 (
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B. BASED ON'BREACH OF PEACE'THEORY
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IX. VIDEO A. PARTS OF PREDICATE CAN
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Mathieu v. State, 992 S.W.2d725 (Te
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F. ABSENCE OF VIDEOTAPE 1. NOT GROU
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K. NO SOUND = NO PROBLEM Aouirre v.
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R. OFFICER'S NARRATIVE ON PERFORMAN
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was effor, albeit harmless, to allo
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forfeited in the guilt-innocence ph
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ecoming the focus of a DWI investig
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Rasan v. State,642S.W.2d 489 (Tex.C
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2. OFFICER DOES NOT HAVE TO BE AN O
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the reliability of VGN before it is
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C. WALK AND TURN = LAY WITNESS TEST
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G. FAILURE TO EXPLAIN FST'S IN DEFE
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B. PROOF OF "STATE'' Barton v. Stat
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C. INSTRUMENT CERTIFICATION 1, NEW
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G. DIC.23 & DIC.24 WARNINGS 1. REQU
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warning on refusing alcoholfesfs, b
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efusing or of giving a sample for s
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2. NO EVIDENCE THAT ADDITIONAL WARN
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Hall v. State, 649 S.W.2d 627 (Tex.
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3. AFTER 2 HOURS Holloway v. State,
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P. BREATH TEST ADMISSIBLE AS PROOF
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T. LOSS OF NORMAL & PER SE LAW EVID
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fesf resu/fs were not inflammatory
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6. IMPROPER ADMISSION OF EXTRAPOLAT
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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: W. EXPUNCTION WILL NOT ALWAYS RENDE
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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