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

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3. JURORS WHO WOULD REQUIRE BREATH TEST TO CONVICT Anderson v. State,341 S.W.3d 585 (Tex.App.-Amarillo 2011, pet. filed). At triat the judge prohibited defense counsel from cotmparing the burden of proof required in a criminal case with the burden of proof required in a civil case (both clear and convincing standard and preponderance of the evidence standard). In its opinion upholding this ruling, the Court of Appeals held that it could not say the trial aourt acted unreasonably by limiting voir dire in this way. Defense argued that some jurors indicated on their juror questionnaires that they had serued on a civil jury and that was the basis for his need to ask the question but the Court of Appeals refused to consider that argument because juror questionnaires were not made part of the record. McKinnon v. $tate , 2004 WL 878278 (Tex..App.-Dallas 2004, pet. ref'd) (Not designated for publication). Quesfion of "Would you require the State to bring you a blood or breath test?" is nof improper "commitment question," and a juror that says that they would not be able to convict without such a fesf is subiecf to a challenge for cause. Fierro v. State, 969 S.W.2d 51 (Tex.App.-Austin 1998, no pet.). Prospective juror who sfafed he would be unable to convict in the absence of a breath fesf was challengeable for cause as he had a bias againsf a phase of the law on which the State was entitled to rely. He would be holding Sfafe to a higher level of proof of intoxication than the law required. 4. JUROR'S ABILITY TO CONSIDER FULL RANGE OF PUNISHMENT Glauser v. State, 66 S.W.3d 307 (Tex.App.-Houston [1't Dist] 2000, pdr ref'd). This was an lntoxication Manslaughter where the trial court properly denied the defense aftorney's challenge for cause on jurors who could not consider probation under the specific facts of the case being tried that went beyond the elements of the offense. The Court cited the standard set out in Sadler v. State. 977 S.W.2d 140 (Tex.Crim.App.1998) which said that a prospective juror is not challengeable for cause because he or she will use facts to determine punishment. A prospective juror is not challengeable for cause based on inability to consider the full range of punishmenf so long as he or she can consider the full range of punishment for the offense as defined by law. The proper question to determine bias against the law regarding punishment is "Whether in a proper intoxication manslaughfer case as defined by statute, where the facts justify it, the venire person could fully and fairly eonsider the entire range of punishment, including the minimum and maximnm."
DWI ROADBLOCKS A. ARE ILLEGAL Holt v. State, 887 S.W.2d 16 (Tex.Crim.App. 1994). Held that state wide plan setting out guidetines rs neede d to make use of roadblock constitutional. Untilthat time, DWI roadblocks are illegal. B. AVOIDING ROADBLOCK CAN PROVIDE BASIS FOR STOP Johnson v. State, 833 S.W.2d 320 (Tex.App.-Fort Worth 1gg2,pet. ref'd). Here officer had reasonable suspicion to stop the suspecf, and that reasonable susprbtbn was not affected by the presence of the roadblock.
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: B. IMPROPER QUESTION/STATEMENT Hark
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
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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
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.
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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
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suggesf that he was physically or m
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D. PROCEDURE FOR TAKING BLOOD SAMPL
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Thurman v. State, 861 S.W.2d 96 (Te
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4. NOT NECESSARY TO SHOW WHO DREW T
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Biqon v. State, 252 S.W.3d 360 (Tex
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offense of DWI," the Court finds th
Page 117 and 118:
8. SEARCH WARRANT AFFIDAVIT CONTAIN
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(b) FArAL Farhart v. State, 337 S.W
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consenfs, 724.012 does not apply. H
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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
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of Appeals had misconstrued the act
Page 135 and 136:
the impairment element of the Sfafe
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Sledqe v. State ,1994 WL 247961 (Te
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V. WHEN CHARGE SPECIFICALLY USES SU
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Tennerv v. State, 680 S.W.2d 629 (T
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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
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G. NO CONFLICT BETWEEN N'DUI'' AND
Page 163 and 164:
equipment was obserued in the vehic
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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
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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
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(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
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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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