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

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I. INFORMATION/CHARGING INSTRUMENTA. MENTAL OR PHYSICAL FACULTIESHerrera v. State, 11 S.W.3d 412 (Tex.App.-Houston [1"'Dist.] 2000, pet. ref'd).McGinty v. State ,740 S.W .2d 475 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd).Sims v. State,735 S.W.2d 913 (Tex.App.-Dallas 1987, pet. refd).Use of language "/oss of normal use of mental and physical faculties" in charging instrument isproper & fhe Sfafe need not elect because fhe "and" becomes'or" in the jury instructions.B. "PUBLIC PLACE'' IS SPECIFIC ENOUGHRav v. State, 749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. ref'd).Kinq v. State,732 S.W.2d 796 (Tex.App.-Fort Worth 1987, pet. ref'd).Allegation of "public place" is a sufficiently specific description.C. STATE DOES NOT HAVE TO SPECIFYWHICH DEFINITION OF INTOXICATIONIT IS RELYING ON IN THE INFORMATIONState v. Barbernell, 257 S.W.3d 248 (Tex.Crim.App.2008).The State does not have to allege in the charging instrument which deflnition of "intoxicated" thedefendant is going to be prosecuted under. The definitions of "intoxicated" do not create twomanners and means of committing DWl. The conduct proscribed is the act of driving whileintoxicated. The two definitions only provide alternative means by which the State can proveintoxication and therefore are not required to be alleged in the charging instrument. The Courtfound that its holding in State v. Carter,870 S. W.2d 197 (Tex.Crim.App.1991) was flawed, and itwas explicitly overruled by this opinion. This will greatly simplify charging language and may doaway with the need for synergisti charges. Bottom line, when you say "intoxicated," yotJ've saidit all.D. DEFINITIONJURY INSTRUCTION SHOULD BE LIMITED TO EVIDENCEPRESENTED AT TRIALErickson v. State, 13 S.W.3d 850 (Tex.App.-Austin 2000, pet. ref'd).ln this case, the Court instructed the jury that a person is intoxicated within the meaning of the law"when such person does not have the normal use of his physical or mental faculties by reason ofthe introduction of alcohol, a controlled substance, a drug, or a combination of two or more of thesesubsfances into the body, tracking the charging instrument and the statutory definition." There wasno evidence at trial that defendant consumed any intoxicant except alcohol. For that reason, thetrial Court should have limited the definition in the instructions to just refer to alcohol. This errorwas found to be harmless because fhe prosecutor never suggesfed that the jury could convict on
fhe basis of a finding that appellant was intoxicated by the use of a controlled substance or drug,either alone or in combination with another substance.Ferquson v. State,2 S.W.3d 718 (Tex.App.-Austin 1999, no pet.).ln this case, the term "intoxicated" was defined in the charging instrument and the jury charge as"not having the normal use of oneb physical or mental faculties by reason of the introduction ofalcohol, a controlled substance, a drug, a substance or its vapors that contain a volatile chemical,an abuseable glue, or an aerosol paint, or a combination of two or more of those subsfances lnfothe body." The statue does not include within its definition of "intoxication" the words "a substanceor its vapors that contain a volatile chemical, an abuseable glue, or an aerosol paint." There wasno evidence presented at trial that the defendant's alleged intoxication was caused by theintroduction into her body "a substance or its vapors that contain a volatile chemical, an abuseableglue, or an aerosol paint." For fhese reasons and the fact that the prosecutor referred to theerroneous charge in argument, the error was found to be harmful and the case was reversed.E. NO MENTAL STATE NECESSARY IN DWI CHARGE',. PRE 549.04Ex Parte Ross, 522 S.W.zd 214 (Tex.Crim.App. 1975).Hardie v. State, 588 S.W.2d 936 (Tex.Crim.App. 1979).2. POST 549.04Lewis v. State, 951 S.W.2d 235 (Tex.App.-Beaumont 1997, no pet.).Reed v. State, 916 S.W.2d 591 (Tex.App.-Amarillo, 1996, pet. ref'd).Chunn v. State,923 S.W.2d728 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).Sanders v. State, 936 S.W.2d 436 (Tex.App.-Austin 1996, pet. ref'd).State v. Sanchez, 925 S.W.2d 371 (Tex.App.-Houston [1st Dist.]1996, pet. ref'd).Burke v. State, 930 S.W.2d 230 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).Aguirre v. State, 928 S.W.2d 759 (Tex.App.-Houston [14th Dist.] 1996, no pet.).F. UNOBJECTED TO ERROR IN CHARGING INSTRUMENTMcCoyv. State,877 5.W.2d844 (Tex.App.-Eastland 1994, no pet.).Where charging instrument mistakenly alleged loss of "facilities" and no objection was made priorto trial, the judge could properly replace the term with "faculties" in the jury instruction.
Page 1 and 2: Driving While IntoxicatedCase Law U
Page 3 and 4: 3. TOMAKEARRESTFORDWI .......164. F
Page 5 and 6: xt.xil.xilt.c.D.E.F.G.SMELL & TASTE
Page 7 and 8: H.t.J.K.L.M.N.o.P.o.R.S.T.U.10. COM
Page 9 and 10: G.H.t.J.K.L.M.N.o.5. NOTNECESSARYTO
Page 11 and 12: J.K.L.M.N.o.P.o.R.S.T.U.V.W.X.6. JU
Page 13: INhEYIt! 9Ln144TABLE OF AUTHORITIES
Page 17 and 18: case a/so reaffirms that a juror ma
Page 19 and 20: IV.TRAFFIC VIOLATIONSYou will often
Page 21 and 22: Eliqibilitv for Occupational Driver
Page 23 and 24: State v. Fudqe, 42 S.W.3d 226 (Tex.
Page 25 and 26: 6. ANONYMOUS TIP FROM TRUCK DRIVERG
Page 27 and 28: 1. APPLIESChilman v. State, 22 S.W.
Page 29 and 30: (b)STOPS MADE AFTER 9-01-05 = YESAr
Page 31 and 32: (c)HOT PURSUITYeaqer v. State, 104
Page 33 and 34: Curtis v. State, 209 S.W.3d 688, (T
Page 35 and 36: State v. Tarvin ,972 S.W .2d 910 (T
Page 37 and 38: was speeding. There was no evidence
Page 39 and 40: defendant made the lane change pres
Page 41 and 42: 2. NOT AN ENCOUNTERStatev. Carter,
Page 43 and 44: Sinsleton v. State.91 S.W.3d 342 (T
Page 45 and 46: 4. THE DEFENDANT'S HOMEGallups v. S
Page 47 and 48: Kalisz v. State, 32 S.W.3d718 (Tex.
Page 49 and 50: 6. FIELD SOBRIETY TESTS ARE NON-TES
Page 51 and 52: 2. POST.ARRESTMever v. State, 78 S.
Page 53 and 54: them. The Court found there was no
Page 55 and 56: alcoholic beer. Test was properly d
Page 57 and 58: C. EMPLOYMENT AND DISCIPLINARY HIST
Page 59 and 60: Hernandez v. State, 107 S.W.3d 41 (
Page 61 and 62: 2. INADMISSIBLE,'CUSTODIAL INTERROG
Page 63 and 64: XV.FIELD SOBRIEry TESTSA. HORIZONTA
Page 65 and 66:
6. VERTICAL GFZE NYSTAGMUS/RESTING
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C. WALK AND TURN = LAY WITNESS TEST
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XVI. SPECIFIC ELEMENTSA. PUBLIC ROA
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C. PROOF OF "MOTOR VEHICLE"Turner v
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alcoholconcentrationwasworking prop
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e some showing of a causal connecti
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Martin v. Department of Public Safe
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t.BREATH TEST NOT COERCED1. EXTRAWA
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that because fhe statutory warning
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4. REFUSAL BASED ON INTOXICATION IS
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2. NO NEEDTO REPEATON 2NDTESTState
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of Criminal Appeals remands back to
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Garcia v. State, 112 S.W.3d 839 (Te
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4. EXTRAPOLATION TESTIMONY IS ADMIS
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Bhakta v. State, 124 S.W.3d 738 (Te
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B. ARREST AT THE HOSPITAL1. RESTRAI
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3. USE OF ALCOHOL SWAB BEFORE BLOOD
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2. OBTAINING RECORDS BY SUBPOENATap
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he and other doctors routinely reli
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appeal is whether the implied conse
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XIX. EXPER TESTIMONYA. STATE EXPERT
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Moncivais v. State , 20O2WL 1445200
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McKinnon v. State, 709 S.W.2d 805 (
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B. ALTERNATIVE CAUSATION = NO CHARG
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jury to convict if they found the d
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Davis v. State, 964 S.W.2d 352 (Tex
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M. NO MEDICAL EXCUSE INSTRUCTIONBur
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Beaslev. State, 810 S.W.2d 838, (Te
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could be allowed to comment on the
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2. DPS RECORDS ALONE WITHOUT J & S
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.2DWl PRTORS ARE ADMTSSTBLE rN GU|L
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concerning the range of punishmentf
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J. OPEN CONTAINER1. SUFFICIENT PROO
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The problem here was not with the f
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3. THE 10 YEAR RULE FOR OFFENSES FR
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Procedure that right applies only t
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Hollin v. State,227 S.W.3d 117 (Tex
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D. ALR HEARINGS: NO COLLATERAL ESTO
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4. DWI & CHILD ENDANGERMENTBaqbv v.
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K. NO DOUBLE JEOPARDY WHERE FAULTY
Page 145 and 146:
Watson v. State, 2008 WL 5401497 (T
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Peters v. Texas Department of Publi
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3)4)evidence showed car had been at
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Revnolds v. State,744S.W.2d 156 (Te
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McCaffertv v. State, 748 S.W.2d 489
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7)8)e)1a)11)Operate no motor vehicl
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INDEX10 YEAR RULE 120ALRHEARTNGS ..
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TABLE OF AUTHORITIESAbbrinq v. Stat
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Block v. State, 1997 WL 530767 (Tex
Page 163 and 164:
Davis v. State, 964 S.W.2d 352 (Tex
Page 165 and 166:
Farmer v. State,2006 WL 3844169 (Te
Page 167 and 168:
Gomez v. State, 35 S.W.3d 746 (Tex.
Page 169 and 170:
Howardv.State,744S.W.2d640(Tex.App.
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Leos v. State, 883 S.W.2d 209 (Tex.
Page 173 and 174:
Mulderv. State,707 S.W.2d 908 (Tex.
Page 175 and 176:
Quinnev. State, 99 S.W.3d 853 (Tex.
Page 177 and 178:
Smithv. State,65S.W.3d332 (Tex.App.
Page 179 and 180:
State v. Melendes, 877 S.W.2d 502 (
Page 181 and 182:
TexasDept. APublicSafetvv.Moore.175
Page 183:
Yokomv.State,2004WL742888(Tex.App.-
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