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

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He challenged his subseguent license suspension arguing that because he was notwarned of the consequences of his refusal to give a specimen under 724 and Secfibn 522 (regarding commercial /tcenses), his refusal was not knowing and voluntary. Court of Appeals found that the failure to warn him of both consequences rendered his refusal involuntary. (b) DoN'T NEED TO BE G|VEN. Texas Department of Public Safety v. McGlaun 51 S.W.3d 776 (Tex.App.-Fort Worth 2001 , pet. denied). Ihe rssue is whether failure to warn the defendant of the consequences of his refusal to give a breath fesf as to his commercial license means his license should not be suspended. The defendantwas not operating a commercialvehicle when he was stopped. The Court held thatthe Defendant was properly warned and his license should be suspended. Specifically, the Court held that 724.015 does not distinguish between commercial and non-commercial vehicles, so it applies to all vehicles. Ihe fact that different consequences are authorized by more than one applicable statute does not reduce the notice given to the defendant of the consequences provided for each. The Court nofes the contrary holding in Thomas and declines to follow that opinion. See also Texas Department of Public Safetv v. Struve. 79 S.W.3d 796 (Tex.App.-Corpus Christi, 2002, pet. denied). 11. DIC 23 & DIC 24 DOCUMENTS ARE NOT HEARSAY Block v. State,1997 WL 530767 (Tex.App.-Houston [14th Dist.] 1997, pet.ref'd) (Not designated for publication). DIC 24is nof hearsay as the warnings form is not offered to prove the truth of the matter asserted in those warnings, but rather is offered to show that the warnings were given to the defendant. Texas Department of Public Safetv v. Mitchell,2003 WL 1904035 (Tex.App.-Fort Worth 2003, no pet.). DIC 23 and DIC 24 were properly admifted under the public records exception to the hearsay rule 803(8). 12. FAILURE TO READ "UNDER 21' PORTION OF DIC 24NOT PRECLUDE ADMISSION OF BT State v. Klein , 2010 WL 3611523 (Tex.App.-Waco 2010, reh. overruled) (Not designated for publication, pet. ref'd). The defendanf's consent to a breath fesf was voluntarily given, despite the police officer's failure to comply with a statutory requirement to orally recite warnings to defendant before obtaining consent for the breath test. In this case the warnings omifted concerned the consequences of tz
efusing or of giving a sample for someone under 21. There was no evidence that the police officer'sfailure to read the warnings had any impact on her consent, especially since the defendant was provided with the written warnings. 13. URINE SAMPLE (a) MAY BE REQUESTED Hawkins v. State, 865 S.W.2d 97 (Tex.App.-Corpus Christi 1993, pet. ref'd). In holding that it was proper for the officer to ask for a urine specimen, the Court points out that the implied consent statute specifically allows a person to consent to any other type of specimen. Police officer may request urine specimen instead of breath or blood, even though statute specifically recognizes only breath and blood tests. (b) rs ADMTSSTBLE WTTHOUT EXPLATNING RTGHT TO REFUSE Harrison v. State, 205 S.W.3d 549 (Tex.Crim.App. 2006). Defendant was arrested for DWt and after having the DtC-24 read to her agreed to give a breath sample which showed no alcohol. She was asked to give blood and agreed as well and was transported to hospitalfor blood draw. Afterfive orsxsomewhat painful attemptsto get blood, she was asked if she would give urine instead, and she agreed so as to avoid continuing to be stuck to obtain a blood sample. The urine sample showed controlled subsfanceg and the defense attacked the urine sample on the basis that the officer did not warn her that she did not have to give a sample and her refusal to give urine would not result in a license suspensrrcn. The Court of Appeals found that the consent to give urine was not voluntary as it was given to avoid the further pain of a blood draw. The Court of Criminal Appeals found that there was no requirement that any warnings be read before asking for consent to a urine sample and upheld the trial court's finding that the consent was voluntary. H. NOT NECESSARY TO SHOW 210 LITERS OF BREATH Wagner v. State,72O S.W.2d 827 (Tex.App.-Texarkana 1986, pet. refd). Not necessary to show that 210 liters of breath were used in the tntoxilyzer test. I. BREATH TEST NOT COERCED 1. EXTRAWARNING REFERRED TO CONSEQUENCES OF PASSING NOT REFUSING Bookman v. State, 2008 WL 31 1271g (Tex.App.-Waco, 2008, reh. overruled). ln hotding that the officer's statement to the defendant regarding the breath test "that if the defendant passed, the officer would let him go," did matke the defendant's consent involuntary. ln 13
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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
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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
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I. INFORMATION/CHARGING INSTRUMENT
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B. IMPROPER QUESTION/STATEMENT Hark
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DWI ROADBLOCKS A. ARE ILLEGAL Holt
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V. OCCUPATIONAL LICENSE CHART The f
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Elisibilitv for Occupational Driver
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Villarealv. State, 2008 WL 4367616
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out that hearsay is generally admis
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Foster v. State, 326 S.W.3d 609 (Te
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anyone other than officer to help h
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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
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: warning on refusing alcoholfesfs, b
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
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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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