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

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C. SMELL&TASTETEST Kaldis v. State, 926 S.W.2d771(Tex.App.-Houston [1st Dist] 1996, pet. ref'd). Defense request that jurors be allowed to smell and taste non-alcoholic mixtures so;urors would see that ff is possible for non-alcoholic mixtures to smell and taste like alcoholic beverages was properly denied. D. CHART OF SYMPTOMS OF INTOXICATION INADMISSIBLE Markev v. State, 996 S.W.2d 226 (Tex.App.-Houston [14m Dist.] 1999, no pet.). In jury trial, chart on which officer listed symptoms of intoxication observed in that case yvas found to be a proper demonstrative aid, but should not have been admitted into evidence. Error in doing so found to be harmless. E. CHART OF SYMPTOMS OF INTOXICATION_DEMONSTRATIVE EVIDENCE Baker v. State, 177 S.W.3d 113 (Tex.App.-Houston [1't Dist.] 2005, no pet.). The Court held that a fill-in-the-blank chart that covered s,gns of intoxication the officer observed was admissible as demonstrative evidence. The prosecutor filled in the blanks as the officer testified. The fact that the chart might contain information similar to that in the police report does not render it inadmissible as a demonstrative aid. F. DEMONSTRATION OF DEFENDANT'S SPEECH Williams v. State, 116 S.W.3d 788 (Tex.Crim.App. October 1,2003). To rebut the evidence that defendant's speech was slurred due to alcohol, his aftorney sought to have his client provide a voice exemplar before the jury, but wanted to do so without being subjected fo cross examination. The Court of Appeals found that the trial Court properly prohibited this holding that other means of showing the same thing were available and that to allow the defendant fo do so without being exposed fo cross examination nsks great potential prejudice to the State and risks misleading the jury. The Court of Criminal Appeals reversed finding that a voice exemplar is nottestimonialwhether it is offered bythe State orthe Defense. It is physical evidence. G. ERROR TO ALLOW BOTTLE OF VODKA TO BE ADMITTED AS DEMONSTRATIVE EVIDENCE Orrick v. State, 36 S.W.3d 622 (Tex.App.-Fort Worth 2000, no pet.). Sfafe was allowed to offer a full unopened bottle of vodka as demonstrative evidence in this DWI case where a bottle of vodka was found in defendant's car at the time of the arrest. ln holding it 48
was effor, albeit harmless, to allow the State fo do so the Court found that when an object that is substituted for the original used in the commission of a crime is not an exact replica and differs in its distinguishing characteristics, the probative value of that object as demonstrative evidence will be very slight. XI. ONE WITNESS SUFFICIENT (OPINION TESTIMONY) Dumas v. State, 812 S.W.2d 61 1 (Tex.App.-Dallas 1991 , pet. ref'd). Valles v. State, 817 S.W.zd 138 (Tex.App.-El Paso 1991, no pet.). lrion v. State, 703 S.W.2d 362 (Tex.App.-Austin 1986, no pet.). Testimony of arresting officer alone = sufficient to convict DWI. XII. IMPEACHING POLICE OFFICER A. FINANCIAL MOTIVE Castillo v. State, 939 S.W.2 d 754(Tex.App.-Houston [14th Disq 1997 pet. ref'd). Defense wanted to offer into evidence the aggregate, annual overtime income earned by arresting officer bytestifying in court. Court held thatthough relevant, such testimonywas properly excluded holding "(the) decision to make allegedly'marginal'arresfs r.s foo attenuated from any potential financial gains to overcome the risk of confusion of theissues, embarrassment, harassment, and undue delay." Court did allow inquiry into amount earned for testifying in that case and his per hour wage. B. QUOTAS Alexander v. State, 949 S.W.2d 772 (Tex.App.-Dallas 1997, pet. ref'd). Reversible error in fhrs case to not allow defense fo cross-examine the arresting officer regarding a departmental directive establishing quotas for DWI ariresfs that was in place at the time of the defendant's arrest. C. EMPLOYMENT AND DISCIPLINARY HISTORY Deleon v. State, 2006 WL 1063765 (Tex.App.-Dallas 2006, no pet.) (Not designated for publication). In this case, the defense sought fo cross examine the officer on his employment and disciplinary history. Specifically, the defense counsel sought to question the officer regarding (1) an off-duty incident in which he pursued vandals; (2) a reprimand he received for missed court dates; (3) statements in a "development plan" from officer's personnel record that some of his reports were hastily written; and (4) the circumsfances surrounding /,,s resignation from another police 49
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Driving While Intoxicated Case Law
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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
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 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: R. OFFICER'S NARRATIVE ON PERFORMAN
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
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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
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was not the result of an involuntar
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trance-like high. The Court affirme
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C. CHARGE ON WORKING CONDITION OF I
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intoxication sefs forfh alternative
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of Appeals had misconstrued the act
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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
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Also, if stipulated that there are
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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
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a violation of the ex posf facto la
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W. EXPUNCTION WILL NOT ALWAYS RENDE
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intoxicated (DWI) from a C/ass B mi
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Holmberq v. State, 931 S.W.2d 3(Tex
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G. NO CONFLICT BETWEEN N'DUI'' AND
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equipment was obserued in the vehic
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unning, radio playing loudly, and d
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wheels was consr.stent with the whe
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Wriqht v. State, 932 S.W.2d 572 (Te
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Bucek v. State ,724 S.W .2d 129 (Te
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concerning how recently the vehicle
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B. DENIAL OF PROBATION DUE TO LANGU
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alcohol by calling a sysfem adminis
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Avfor v. State, 2011 WL 1659887 (Te
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Carrasco v. State,712S.W.2d 120 (Te
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Drapkin v. State, 781 S.W.2d 710 (T
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Folev v. State, 327 S.W.3d 907 (Tex
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(Tex.Crim.App. 1988)..... .......42
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Human v. State, 749 S.W.2d 832 {Tex
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Lewisv.State,72S.W.3d704(Tex.App.-F
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Moncivais v. State, 2O02WL 1445200
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Poncev. State,828 S.W.2d 50 (Tex.Ap
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Schaum v. State, 833 S.W.2d 644 (Te
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State v. Gerstenkom, 239 S.W.3d 357
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Stone v. State, 685 S.W.2d 791 (Tex
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Vasquezv. State,2007WL 2417373 (Tex
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