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MUIION OF THE M OM Texas driving privileges because he allegedly refused to subnut to an Intodpe~ Test after his arrest. In suppo~Z hereof Defendant would show the fol. lowlg: I. RRLEVAiW SArnIES Texas 'Iimsportation Code section 724.061 states as follows: h person's refusalof a request by an officer to submit to the taking of a specimen of breath or blood, whether the refial was express or the result of an intentional faih~re to give the specimen, I~J. he introduced into evidence at the person's trial. (emphasis added) Additionally, Texas T~ilnsportation Code section 724.015 states in relevant part as follows Before requeslig a person to submit to the taking of a specime~~, the officer shall inform the person ody and in writing that: if the person rcfi~ses to submit to the taking of a specimen, that reji1sa1 m q v be admissible in a subsequ8)1tprosecutiom; if tl~e person refuses to subnut to the taking of aspecimeu, the person's license to opnxte a motor vehicle will be automatically suc pended, whether or not the person is subseq~~ently prosecnted as a result of the arrest ..(emphasis added). 11. SUMMARY OF D!Bi\?)AhT'S POSITION Neither the plain meaning of the aforementimted statutory provisions nor Texas case law inte~prcting them make the possible penalties for a test refusal automatically admissible as evidence of guilt in a DWI prosecution shyly because the refusal to subniit to breath testing EEQ be admissible. To hold othetwise would allow the State to connect ir~dwant and non-p~obativevidence to at1 mnexpllnlned refnsal as cuc~unstnntid evidence of guilt. m. SATUTORY AIIYSIS The starting point in any Stahltot). col~st~uction analysis is the plain language of tl~e statute in issue. Bmlun u. State, 943 SS.\V.2d 35,36 (Teu. Crim App. 1997). When a statute is clwr and unambiguo~~s, [the con~t] should apply the plah mw&g of its words, unless that plain nleaning lcads to abst~rd resolts. Buykin u. State, 818 S.W.2d 782,785 (Tcx. Crim. App. 1991). Final$ the court "sl~ould resort to extmtexh~al fact013 when the stah~tory language is ambiguous or the clear iat~guage gelearls to absurd results." Id (emphasis added). The relevant portions of Transportation Code Sections 724 061 at~d 724 015 state only that a pmon's 'kefi~sd" to subnut to the taking ofa specimen may be adn~issible in a subsequent Dm proceeding. Furthermore, as per the Code Construction Act, section 312.002, ~Meamng of TVords, (a)Except ILS provided by Subsection (b), vords shall be given their ord~na~y meaning. T11e enabling language stating that a refusal "mar be admitted in a DWI proceedmg does not open the door or enable the possible civil penalties for a refusal to be admitted as well. The plain language of the statutes iadicates the Legislature's inten1 that only a refd is atlnuss~ble, and canditio~~ully at best. The "condition" of course is that the refid be relevant. Ilere, it must bc understood that a refusal then is not dways relevant. Indeed, to be admitted as relevant it must nleet the ~~mdates of Rules 402 and 403, wiiich ate discussed below. Moreowr, because thc plain lmguagc does not extend to the penalties for refusmg, U I ~ 1ang11age is unan~higuous and those penalties arc sin~ply not admissible This appliertion of the plain language does not lead to absurd results Thus, the word "lefusal" iu the statutes cmot be e\pmded to include andlor incorpo~xte the civil penalties for refusal to st~bmito an haodper test ahsent express legislative intent If the Legislahlre wanted to make the civil penalties admissible it wo111d have said so As per Texas Rule of bMdence 402, "[elvidence wbich is not relevant is inadmissible." Rule 401 defines "relnvnt evideace" [as] "mean[ingl evidence having any tcudency to makc the cxi8tence of my fact that is of consequence to the determination of the action LEQE probable or less prohable than it urould be without the evidence." (en~pl~as~s added).z Notl~Qin sections 724.015 or 724.061 autho~izes the admission of what anlounts to a rule of evidence that allows he icicil~g in nith the cake. IIad the legislature intended that evidence of the civil penalties be adnllssible in addition to a reh~sal to submit to i~ brmth tmt, it could have so pmided 16 VOICE FOR THE DEFENSE WWW.TCDLA.COM NOVEMBER 2001
1 1 h~ the statutes. The State an cite to no autho~ity indicating that the legislature intended that evidence of the civil penalties should be admissible at trial. Because no authority mandates the penalties for refusal are admissible, and because the bare existence of those penalties makes it neither more, nof less p13bahle that Defendant was intoxicated, such evidenu! is clearly irrelevant, and the~cfore not admissible. Even if the court finds that the penalties for a refusal have some remote relevance to the issue of guilt or fonocence, those penalties should still be excluded from evidence ~rnder Rule 403. Rule 403 provides that "[allthough relemt, evidence may he excluded if its probative due is substantially ouhveighed $the dwer of ulllair prejudice, confusion of the issues, or misleading the jury, or by considemtions of undue delay, or needlessp~wenlati~n of cumulative evidence." IIere, tl~e admission of penalty evidence, after the refusal is already admitted, would clearly conhwe and mislead the jury to the extent that both the refusal and peoaltyrelemce would be clearly ouauhghed by the ~isk of unfafr prejudice.3 V. OPffi\lG THE DOOR 1 Sholould the Court deny this Motion in Limine by dowing the State to introduce evidence of the civil sanctions for x refusal, Defendant requests the cou~t chxacterlze the State's proffer &s malogous to Mted avgumeot . Accordingly, such a proffa. opens the door for the Defendant to introd~lu! evidence that he in fact requested an ALR henring, be. the relevance is that he did nor believe the praposed sospe~~sioo was legitimate, that he did not suffer any ALR sanctions for refusing a breath or blood test or that the Department of Public Safety didnot have enongh evidence to suspend Defendant's driver's license under the reduced scrutiny of a lesser burden of proof. M. PRAYER WmRIEORE, piwises considered, the Defendauk rcspcctfully req~~esls this co~ut enter an order prohibiting the State fron~ presenting or eliciting any evidence of potential civil sauctions that could be imposed upon defendant*.^ Texas driving privileges for defendant's alleged refusal to submit to an intolilyzer test subsequent to his arrest for driving while intoxicated. . . , . ' - Respectfirlly submitted, TRICHTER & SAMUEISON, P.C. By: CHRISTWN C.SAMUEISON SBN 24002859 The Kkby Mmsion 2000 Snlith Street Houston, Texas 77002 Tel: (713) 524-1010 Fax: (713) 524-1080 Attorney for Defendant, CERTIPIGSE OP SERVICE I hereby certifg that a t ~ ;ad w correct copy of the above andhegoing Motion has beeo delivered to the Assisrant Distlict Attorney presently assigned to this me on thls the day of ,2001. CHRISTIAN C. SAMWIISON NOVEMBER 1001 'WWW.XDLA.COM VOICE FOR ME DEILNSS 17
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