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

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Kunkelv. State,46 S.W.3d 328 (Tex.App.-Houston [14th Dist.] March 8,2001, pet.ref'd), Defendant challengesthe authority of a civilian wrecker driver to stop and "arrest" him. Courtfound that even though a citizen cannot make an arrestfor mere moving violations, the cumulative driving behavior of the defendant in fhis case amounted to a "breach of the peace." The citizen obserued the defendant weaving back and forth over the roadway, hifting and driving over the curb about 20 times over a quarter of a mile before she pulled up the gated entrance of some town homes at which point the civilian pulled in front of her blocking her entrance into the complex, taking her car key and keeping her in her car untilthe police arrived. O. TURNING/EXITING WITHOUT A SIGNAL 1. YES Wehrinq v. State, 276 S.W.3d 666 (Tex.App.-Texarkana 2008, no pet.). Defendant's failure to signal his intent to turn when entering the turn lane and whee actuatly making the rightturn constituted a traffic violation, and therefore, officerwas authorized to stop and detain defendant. Transportation Code 545.1 04 Reha v. State, 99 S.W.3d 373 (Tex.App.-Corpus Christi 2003, no pet.). Defendant turned teft at inttersection without signating and was subsequently stopped for traffic violation. Secfion 545.104 of the Transportation Code requires an operator fo use aturn signal 'to indicate an intention to turn, change lanes, or start from a parked position." A turn signal is required regardless of the degree of the turn. No language in the Statute limiting it to turns of ninety degrees. Court dr'sagrees with Trahan and Zeno. Kruq v. State, 86 S.W.3d764 (Tex.App.-El Paso 2002, pet. ref'd.). Defendant failed to signal his turn off of a public roadway into a private driveway. Court held that the failure to signalwas a traffic violation and disagrees with Trahan and Zeno. 2. NO State v. Zeno, 44 S.W.3d 709 (Tex.App.-Beaumont 2001, pet. ref'd). Trahan v. State, 16 S.W.3d 146 (Tex.App.-Beaumont 2000, no pet.). Defendant was sfopped for failing to signal when he exited the freeway. Court held that 545.104 did not apply as there was no evidence that he made a turn or changed lanes to exit the freeway. /f bases the finding that there was no "turn" on ifs belief that the language only applies to ninety degree turns. 28
P. "FOLLOWING TOO CLOSELY''- SUFFICIENT DETAIL? 1. NO Ford v. State,158 S.W.3d 488 (Tex.Crim.App. 2005). <strong>Texas</strong> State Trooper Andrew Peavy pulled Matthew Ford's vehicle over for following another car too closely on Highway 290 outside of Houston in violation of <strong>Texas</strong> Transportation Code S 545.062(al which providesthat an operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway. There were no details given beyond the statement that the officer thought the defendant was traveling "too closely." Court of Appeals held stop was proper and the Court of Criminal Appeals reversed holding that the officer's "conclusory statement" was unsupported by articulable facts. "The State failed to elicit any testimony pertinent to what facts would allow Peavy to objectively determine Ford was violating a traffic law in support of his judgment." 2. Stoker v. State, 170 S.W.3d 807 (Tex.App.-Tyler, 2005, no pet.). Because police officer testified that he saw defendant's vehicle '\ight up on another" vehicle while traveling at a high rate of speed, such that defendant would not have been able to safely sfop his vehicle, officer gave specific, articulable facts to support the reasonable suspicion that defendant had committed a traffic violation so as to justify stop. V.T.C.A., Transportation Code 5545.062. Wallace v. State. 2005 WL 3465515 (Tex.App.-Texarkana Dec 20, 2005, pdr dismissed) (Not designated for publication). Testimony that when the defendant changed lanes, he pulled his vehicle in front of another car and caused the driver of this second car to have to apply the brakes because he was too close coupled with officer testimony that the two vehicles were "[p]robably a car length or /ess" apart when defendant made the lane change presented clear, concrete facts from which the trial court could determine whether the officer did indeed have "specific, articulable facts," which when viewed under the totality of the circumstances could lead the officer to reasonably conclude Wallace had violated a traffic law. The Court distinguished fhese facts from fhose in the Ford case. 29
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: explain the margin of error or the
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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