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

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2. DOESN'T APPLY Koteras v. State ,2010 WL 1790808 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (Not designated for publication). Court of Appeals rejected Trial Court's finding that this was a proper community carettaking stop. Specifically, it found that merely pulling one's vehicle onto the shoulder of the road does not warrant detention by a law enforcement officer, and the curiosity of an officerto see "what is going on" is not sufficient to meet the community caretaking function. Franks v. State,241 S.W.3d 135 (Tex.App.-Austin 2007, pet. ref'd). This was an appeal of a motion fo suppress denial. Ihe issue was whether the officer's contact with a visibly upset female motorist in a parked car with the motor running and his refusal to allow her to leave, fell within Community Care-taking Exception. The Court found that the officer's initial interaction with the defendant was an encounter. but that encounter became a detention when the officer told the defendant she couldn't leave. The detention was not justified by the officer's community care-taking function because the defendant did not exhibit a high enough level of drsfress, she was not in an unsafe location, and she did not pose a danger to herself or others. Corbin v. State, 85 S.W.3d 272, (Tex.Crim.App.2002). Defendant's carwas obserued at 1:00 a.m. crossrng over a srde sfnpe ontothe shoulder o,f the road and driving on the shoulder about 20 feet. He was traveling 52 mph when speed limit was 65 mph. Officer pulled Defendant over for failure to maintain a single lane and because he felt the Defendant might be drunk or in need of assr'sfance. Before pulling him over, the officer followed the Defendant for about a mile and observed no traffic violations. Upon stopping, it was discovered thatthe Defendant had cocaine strapped to his back. The majority focused on whether the officer's belief that Defendant needed help was "reasonable." The Court further held that the most weight should be given to factor number one, namely, "the nature and levelof drsfress exhibited by the individual." The Court held that the "communi$ care-taking function" did not apply in this case. Andrews v. State, 79 S.W.3d 649 (Tex. App.- Waco 2002, pdr refd). Officer obserued Defendant pull to the side of the road and then observed Defendant's wife, front seaf passenger, lean out the door and vomit, and the Defendant drove off and was stopped by officer. Court held stop was not justified by the community care-taking function. 18
F. OFFICER'S ARREST AUTHORITY WHEN OUTSIDE JURISDICTION 1. FOR ATRAFFIC OFFENSE (a) STOPS MADE BEFORE 9-01-05 = NO State v. Kurtz, 152 S.W.3d 72 (Tex.Crim.App., 2004). An officer of the police department of a city does not have authority to stop a person for committing a traffic offense when the officer is in another city within the same county. Article 14.03 (oX1) (b) STOPS MADE AFTER 9.01.05 = YES Authorizes a municipal police officer to make a warrantless arresf for a traffic offense that occurs anywhere in the county or counties in which the officer's municipality is located. Note: This Iegislative change effectively overrules the Kurtz case /isfed above. CAN STOP AND ARREST FOR'BREACH OF PEACE' State v. McMorris, 2006 WL 1452097 (Tex.App. Fort Worth 2006, pet. ref'd) (Not designated for publication). Ihis case addressed fhe rssue of whether a municipal police officer has authority fo sfop a driver outside of his jurisdiction when he reasonably suspecfs fhe driver of DWI. The law in effect is the pre-2005 version of Articte 14.04 of the CCP. The trial court suppressed fhe stop and the Court of Appeals reversed. The trial court viewed thrs as an officer stopping a vehicle for a traffic offense, failure to yield right of way, which he cannot do and the Court of Appeals viewed the traffic offense as giving the officer reasonable susplclon that the defendant was DWI which does support the stop. Valentich v. State ,2005 WL 1405801 (Tex.App.-Fort Worth 2005, no pet.) (Not designated for publication). Officer was authorized to detain Defendant because he had reasonable suspicion to believe he was observing a breach of the peace, that is, driving while intoxicated, and because he pursued her from his lawfuljurisdiction in Flower Mound a very short distance into Lewisville. Ruiz v. State, 907 S.W.2d 600 (Tex.App.-Corpus Christi 1995, no pet.). Officer, who was outside of his jurisdiction, could properly stop and arrest defendant whom he observed driving the wrong way down a highway for a "breach of the peace." See also: Romo v. State,577 S.W.2d 251(Tex.Crim.App. 1979). t9
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: anyone other than officer to help h
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,
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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
Page 113 and 114:
Biqon v. State, 252 S.W.3d 360 (Tex
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offense of DWI," the Court finds th
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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
Page 137 and 138:
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
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K. PROPER TO ALLEGE DATE PROBATION
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o. IF YOU ALLEGE MORE PRIOR DWI'S T
Page 153 and 154:
a violation of the ex posf facto la
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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
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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
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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