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

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G. READING DWI ENHANCEMENT AT WRONG TIMEPratte v. State, 2008 WL 5423193 (Tex.App.-Austin 2008).The court allowed the State to read the enhancement paragraph in front of the jury that alleged aprior DWI conviction over the defendant's objection. Article 36.01 of the Code of CriminalProcedure says that when prior convictions are alleged for purposes of enhancement only and arenot jurisdictional, that portion of the indictment or information reciting such convictionshall not beread until the hearing on punishment. ln this particular case, the defendant stipulated to the priorlisted in the enhancement afterthe information was read and before the State called itsfirsf wifnessso the Court holds that the asserfed error did not contribute to the defendant's conviction.II.VOIR DIREA. PROPER QUESTION/STATEMENTKirkham v. State,632 S.W.2d 682 (Tex.App.-Amarillo 1982, no pet.).Voir dire question, "Do yotr believe a person is best judge of whether they are intoxicated?" isproper and is not a comment on defendant's right not to testify.Vrba v. State,151 S.W.3d 676 (Tex.App.-Waco, October 27,2004, pdr ref'd.).The following questions asked by the prosecution were proper in that they were not "commitmentquestions:""What are some s/gns that somebody is intoxicated?""Who thinks that the process of being arrested would be something that might sober you up a littlebit?""Why do you think someone should be punished?""[W]hich one of these [four theories of punishment] is mosf importanto you in trying to determinehow someone should be punished and how much punishmenthey should receive?"B. IMPROPER QUESTION/STATEMENTHarkey v. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.).Defense attorney asking member of jury panel "if they could think of a reason why anyone wouldnot take such a (breath) test" held to be improper in its'Torm."Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001).The question, "lf someone refused a breath test, would you presume him/her guilty on theirrefusal alone?" was held to be improper as it consfitufes an attempt to commit the juror. This
case a/so reaffirms that a juror may permissibly presume guilt from evidence of a refusal to givea breath or blood test.Davis v. State, 2006 WL 2194708, No. 14-03-00585-CR (Tex.App.-Houston [14th Dist.] 2006).Even if State established that breathlesting device was functioning properly at the time of the test,that the fesf was properly administered, and that defendanfb fesf result was 0.08 or above,defendant was still entitled to challenge, and the jury to disbelieve, the reliability of the methodologyused by the device, and Sfafeb misstatemenfs fo the contrary during voir dire required reversal.C. CHALLENGE FOR CAUSE1. PRESUMPTION OF INNOCENCEHarkey v. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.).Jurors stating, in response fo suggesfion by defense counse/ that defendant "must be guilty ofsomething or he wouldn't be there" did not provide a basis for challenge for cause.2. ONE WITNESS CASEZinoer v. State, 932 S.W.2d 511 (Tex.Crim.App. 1996).Leonard v. State, 923 S.W.2d770 (Tex.App.-Fort Worth 1996, no pet.).Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App.1995).Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993).Statement by venire person that "testimony of one wifness would not be enough for him to convicteven if that testimony proved all elements beyond a reasonable doubt' may make that jurorchallengeable for cause but be very careful and read the above cases before you try it.3. JURORS WHO WOULD REQUIRE BREATH TEST TO CONVICTMcKinnon v. State, 2004 WL 878278 (Tex..App.-Dallas 2004, pet. ref'd) (Not designated forpublication).Quesfibn of "Would you require the State to bring you a blood or breath test?" is nof improper"commitment question," and a juror that says that they would not be able to convict without sucha fesf is subT'ecf to a challenge for cause.Fierro v. State, 969 S.W.2d 51 (Tex.App.-Austin 1998, no pet.).Prospective juror who stated he would be unable to convict in the absence of a breath fesf waschallengeable for cause as he had a bias againsf a phase of the law on which the State wasentitled to rely. He would be holding Sfafe fo a higher level of proof of intoxication than the lawrequired.
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 and 14: INhEYIt! 9Ln144TABLE OF AUTHORITIES
Page 15: fhe basis of a finding that appella
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
Page 67 and 68:
C. WALK AND TURN = LAY WITNESS TEST
Page 69 and 70:
XVI. SPECIFIC ELEMENTSA. PUBLIC ROA
Page 71 and 72:
C. PROOF OF "MOTOR VEHICLE"Turner v
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alcoholconcentrationwasworking prop
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e some showing of a causal connecti
Page 77 and 78:
Martin v. Department of Public Safe
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t.BREATH TEST NOT COERCED1. EXTRAWA
Page 81 and 82:
that because fhe statutory warning
Page 83 and 84:
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
Page 109 and 110:
McKinnon v. State, 709 S.W.2d 805 (
Page 111 and 112:
B. ALTERNATIVE CAUSATION = NO CHARG
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jury to convict if they found the d
Page 115 and 116:
Davis v. State, 964 S.W.2d 352 (Tex
Page 117 and 118:
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
Page 147 and 148:
Peters v. Texas Department of Publi
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3)4)evidence showed car had been at
Page 151 and 152:
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
Page 161 and 162:
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.
Page 171 and 172:
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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