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

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defendant identification questions aswould be beyond normalTerry stop guesfions. Even though it was error to allow the jury to hear statements, the case was not reversed as Court found it did not contribute to defendant's conviction or punishment. Alford v. State, 22 S.W.3d 669 (Tex.App.-Fort Worth, July 20, 2000, pet. ref'd). Using the same standard listed above and distinguishing fhis case from that one hetd that handcuffing the defendant did place him in custody and thereby rendered his statements inadmissible and required reversal. E. STATEMENTS ABOUT DRUG USE INADMISSIBLE WTHOUT EXPERT TESTIMONY Layton v. State, 280 S.W.3d 285 (Tex.Crim.App. 2009, reh. denied). The defendant objected tothe admission of the portion of the DWI videowhere he admitted taking Valium and Xanax as irrelevant. (lt should be noted that the definition of intoxication listed in the information in this case alleged only "alcohol" intoxication). ln reversing the case, the Court of Criminal Appeals held that without expert testimony to provide the foundation required to admit scientific evidence, the testimony regarding Appellanfb use of prescription medications was not shown to be relevant to the rssue of his intoxication. F. STATEMENTS BY DEFENDANT'S HUSBAND. NOT HEARSAY Snokhous v. State,2010 WL 1930088 (Tex.App.-Austin 2010, no pet.) (Not designated for publication). Defendant's husband made the statement to officers during his wife's arrest for DWI that "whatever you guys can do to keep her out of a DWI I would really appreciate it" was admissible as nonhearsay as a presenf sense impression. (Concurring opinion) XV. FIELD SOBRIETY TESTS A. HORIZONTAL GAZE NYSTAGMUS 1. IS ADMISSIBLE Quinnev v. State, 99 S.W.3d 853 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Gullatt v. State, 74 S.W.3d 880 (Tex.App.-Waco 2002, no pet.). Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 1994). 55
2. OFFICER DOES NOT HAVE TO BE AN OPHTHALMOLOGIST TO TESTIFY Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 199a). Anderson v. State, 866 S.W.2d 685 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Finley v. State, 809 S.W.2d 909 (Tex.App.-Houston [14th Dist.] 1991, pet. refd). 3. DOES THE OFFICER NEED TO BE CERTIFIED? (a) NO, BUT RULE 702 REQUIREMENTS MUST BE MET Price v. State, 2006 WL 1707955 (Tex.App.-Austin 2006, pet. denied) (Not designated for publication). Burkhart v. State, 2003 WL 21999896 (Tex.App.-Dallas, 2003, no pet.) (Not designated for publication). Hackett v. State, 2003 WL21810964 (Tex.App.-Fort Worth,2003, no pet.) (Not designated for publication). kerr v. Staie, 921 S.W.2d 498 (Tex.App.-Fort Worth 1996, n6 pet.). The Emerson case does not require that an officer have "practitioner certification" before his testimony on HGN rs admrssible. Such determination is to be covered by Rule 702 of the <strong>Texas</strong> Rules on Criminal Evidence. (b) cERTrFrcATroN FROM A TRATNTNG COURSE W|LL SUFFTCE Smith v. State, 65 S.W.3d 332 (Tex.App.-Waco 2001, no pet.). Officer who had extensive training in standardized field sobriety tests which began at the potice academy and continued with additional course work who also received certification from a course at <strong>Texas</strong> A & M University was qualified to testify about HGN. (c) OFFICER MUST HAVE SOME CERTIFICATION Ellis v. State, 86 S.W.3d 759 (Tex.App.-Waco 2002, pet. ref'd). Officer who testified that he never completed the thirty fesf cases he was supposed to perform as part of a NHISA course on HGN and who testified upon cross that he was not certified to perform HGN should not have been allowed to testify about HGN. Error was found to be harmless. (d) LAPSED CERTTFTCATTON W|LL NOT DTSQUALTFY Patton v. State,2011 WL 541481 (Tex.App.-San Antonio 2011). ln this case defendant contends officer was not quatified to administer the HGN or testify to its 57
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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
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 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: Rasan v. State,642S.W.2d 489 (Tex.C
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
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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
Page 203 and 204:
Vasquezv. State,2007WL 2417373 (Tex
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