Plano DWI Lawyer Blog

To reflect changes made to the Texas Transportation Code effective September 1, 2011, the state Department of Public Safety has amended both the DIC 23 and DIC 24 (as well as the 54).

The DIC 24 is a document that is more commonly known as the statutory warning.  It is a script that Texas police officers are required to read to Driving While Intoxicated suspects prior to requesting a breath or blood sample.  Essentially, is informs the suspect of their statutory rights, and the consequences of refusing to submit to the request for breath or blood.   The new form includes language explaining to the suspect that if he or she refuses to submit, the officer may request that a judge issue a search warrant for the person's blood.

Similarly, the document known as the DIC 23 has also been amended to reflect new legislative changes.  The DIC 23 will no longer need to be sworn to by a notary. 

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The client drove his car into a Texaco station (literally) after sideswiping another car on Central Expressway. Hospital records indicated the presence of multiple controlled substances in the client's system.  Seems like an airtight case? 

Well, at first glance, maybe.  The fact of the matter is that there were multiple physical and emotional conditions that explained the bizarre driving.  Further, the drug test was a urine "screen" which shows presence of a particular drug.  It cannot show when the drug was taken, how much was ingested, the form of ingestion (oral, intravenous), whether the drug in the urine is still even in the blood,  or a host of other factors that may influence the concentration of a particular drug in a person's blood. 

Further, the state did not call a witness who actually performed the drug test.  The bottom line is that there was a rushed decision that this was a DWI case.  The evidence at trial just did not show that.  The jury did the right thing and the client was relieved and pleased.

According to an article recently published in USA Today,  the number of immigrants deported following a Driving While Intoxicated conviction skyrocketed from $10,851 in 2008 to nearly 28,000 in the fiscal year ending on September 2010.

  The numbers strongly suggest that the Immigrations and Customs Enforcement is taking very seriously the fact of a Driving While Intoxicated conviction in determining whether to seek exclusion of an immigrant.  This trend is a reminder that even misdemeanor Driving While Convictions can have disastrous consequences for one's future, especially if immigration issues are at play. 

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During the last decade, the U.S. Supreme Court has focused a great deal of attention on what is known as the "Confrontation Clause" of the Sixth Amendment to the U.S. Constitution.The Confrontation Clause provides that persons accused of crimes have the right "to be confronted with the witnesses against" them.  

 The recent case of  Bullcoming v. New Mexico  is the latest example of the Court's interestthe Court held that Mr. Bullcoming's Confrontation Clause rights were violated when he was denied the opportunity to confront and cross examine the analyst who actually test the alcohol concentration of the blood in his case.  In Bullcoming, the prosecution called a different lab analyst to testify than the one that actually analyzed Bullcoming's blood sample.  The Court held that this testimony was not proper as Mr. Bullcoming was not able to confron the witness who actually analyzed his blood.  Rather, he was able only to questions a surrogate analyst testifying to what another analyst did to reach his or her conclusion as the alcohol concentration.

This decision may impact Collin County Driving While Intoxicated cases because it will likely require the State to arrange for the anaylist that actually performed the blood test to appear in court to testify and be subject to cross examination before the results of a blood test will be admissible against an accused person

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I often receive calls from the friends and family members of people who have been arrested in Plano, or other Collin County cities.  They are always completely perplexed and confused about  the process for getting them out of jail and the process going forward.  This is perfectly understandable.  The family and friends are often placed in a stressful situation and involved in a system that is totally foreign to them.  I decided to write this article to explain the process.

When a person is arrested they are usually taken to the jail in the city in which they were arrested.  In order to secure a person's release from jail, a bond must be posted. A bond is not even set until a person appears before a magistrate.  A person may be held without bond for a period of time until they appear before the magistrate.  Essentilly then, the person may be stuck for up to 24 hours while they wait to appear before a magistrate. 

An attorney can help obtain the release of your loved one of friend almost immediately, and without having to wait for a magistrate.  This process involved the attorney filing what is often called a writ bond.  The term writ bond is shorthand for a writ of habeas corpus.  When an attorney files a writ bond, it has the effect of immediately setting bond so that bond may be posted and the person can be released. 

Without a writ bond filing, the person will be held until they can see a magistrate. 

Writ bonds can NOT be filed for among other things

felony cases

capias pro fine arrests.

They are typically available for most misdemeanor arrests.

You read that correctly. Really. The Texas State Department of Transportation used approximately $80,000 taxpayer dollars to produce Spanish telanovelas to reach out to the Spanish speaking community. You can read news accounts of the event  here.

   The Department has apparently already produced three of them.  I am not sure this is the best use of taxpayer dollars in a recession, but that is just my opinion.  Even if you are a Spanish only speaker, I find it hard to believe that you need a Government movie to inform you that driving after you have become intoxicated is 1. a bad idea and 2. illegal.  Below is a link to a video of  one of the telanovelas.

DWI TELANOVELA

This legislative session in the Texas Legislature saw a flurry of bills related to Driving While Intoxicated. I blogged about many of them here, here and here.  Some of the proposals including creating a brand new crime for failing to install an ignition interlock device when ordered by the court, mandatory ignition interlock devices for those convicted of even a first driving while intoxicated offense, and deferred adjudication for Driving While Intoxicated.

 In spite of the apparent focus on passing new legislation, none of the proposals had enough support to become law except one.  HB 1199 passed both houses of the Texas Legislature and was sent to the Governor.  This new law, known as the Abdallah Khader Act changes the law in two ways. 

First, the law elevates Driving While Intoxicated from a Class B misdemeanor offense to a Class A misdemeanor offense for those having an alcohol concentration of .15 or more "at the time the analysis was performed."  In addition to raising the punishment range, I am concerned that depending upon how this new law is read and applied, it may effectively criminalize having an alcohol concentration of .15 or more "at the time the analysis was performed" regardless of what the person's alcohol concentration was at the time of driving.

For example, let's assume  a person consumed a large quantity of alcohol within fifteen minutes to a half hour of driving.  Let's further assume that they are stopped by the police soon after driving.  In that situation, it is very unlikely that the person could have been over a .08 at the time of operation, but could be over .15 by the time the alcohol is fully absorbed at the time the analysis is performed. 

Second, the law elevates the punishment range from a Third Degree Felony to a Second Degree felony for an Intoxication Assault case where the victim suffers a brain injury that leaves them in a persistent vegetative state

Many people fall into some common traps following a Texas DWI arrest that can be easily avoided.

1.  Not demanding an ALR hearing within 15 days of the arrest.

This is easily the most common mistake after a Texas DWI arrest that I see.  You must request a hearing within 15 days or your driver's license will be suspended automatically on the 40th day after your arrest.  I will personally request an ALR hearing on your behalf if you request as part of your consultation.

2.  Driving after your license is suspended.

Many people suffer a needless drivers license suspension as a result of their DWI arrest because they either failed to request an ALR (administrative license revocation) hearing, or did not win the hearing and failed to obtain an Occupational Driver's License.  If you are stopped by police with a license that has been suspended you can be charged with a new criminal offense that is in some cases equal in severity to the original DWI charge. 

 3.  Taking the first offer from the District Attorney's Office.

You cannot make intelligent decisions about how to resolve your case without thorough investigation into the facts and possible legal defenses by your attorney.  When you accept an offer from the District Attorney you are admitting guilt.  At the very least, an investigation into the facts and law will often develop defenses that are useful dealing with the District Attorney's Office.

4.   Representing yourself. 

Representing yourself is a way to make sure that you obtain the worse possible outcome.  The DWI laws are complex and require knowledge of the law, the science and the process.  When you represent yourself you are at several disadvantages, the most important of which is that your attorney opponents are trained and skilled prosecutors whose job it is to see that your are convicted for a DWI, if they believe you are guilty. 

    5.   Hiring an attorney that does not dedicate their practice to DWI defense 

     Any attorney can handle a DWI case but few dedicate a substantial portion of their practice.  DWI practice is a very complicated area within criminal defense law.  You should hire an attorney that is a certified practioner of th Standardized Field Sobriey tests, one who handles a significant number of DWI cases.  You should also look for an attorney who makes a point of remaining abreast of th current developments of the law and science in DWI cases.

Generally, if a person who has been arrested for Driving While Intoxicated in Texas refuses to submit to a request for breath or blood made by a police officer, the officer must seek a search warrant from a judge authorizing him or her to draw the blood over the person's objection.
In order for the Judge to consider the search warrant request, the officer must prepare an affidavit describing the facts that the officer believes will establish probable cause that evidenced of a crime (DWI) will be found in the person's blood. This affidavit must be sworn to in the presence of a neutral and detached  judge. Often, police officers seek to satisfy the requirement that they swear to the truth of the matter in the affidavit by calling the judge and swearing to it over the phone.
Texas Code of Criminal Procedure 18.01 appears to require the personal presence of the affiant in front of the judge. The Fifth Court of Appeals in Dallas, Texas avoided directly addressing the question in the case of Swenson v. State.  I have written previously about the Swenson court's decision, here.   

The Twelfth Court of Appeals in Tyler, Texas however has directly addressed the question of whether Section 18.01 of the Texas Code of Criminal Procedure requires an officer to personally appear and swear to the truth of the information in the affidavit in the case of Taylor v. State.

The Taylor court held that the Code does require that the "affiant must be physically present in front of the magisttrate or officer authorized to administer oaths when swearing to the facts in his affidavit."

Thus, at least in the Twelfth, telphonic swearing of the oath does not comply with the Texas Code of Criminal Procedure.  How will this affect Driving While Intoxicated cases in Collin County or Dallas County?  Well, lawyers must continue to file Motions to Suppress the blood test results when the blood was obtained by a search warrant when the facts were sworn to over the phone.  We now have a Court of Appeals case specifically identifying the process as not in compliance with the Code of Criminal Procedure.  The issue, in my view, is eventually headed to the Court of Criminal Appeals.

Among the DWI bills being considered by the Texas Legislature this session is one I nearly overlooked. Rep. Stefani Carter, R- Dallas has introduced H.B 982 , which would create an a new class A misdemeanor for failing to install or maintain an Ignition Interlock device on a car when ordered to do so.   An Ignition Interlock device is a machine that is installed in your car that is designed to indicate the presence of alcohol and disallow the car from starting if alcohol is detected.  

The bill was referred to the Criminal Jurisprudence Committee   in February and there has been no additional action taken since then according to the Texas Legislature Online.  

Rep. Todd Smith has introduced H.B. 189, which would authorize people charged with a first driving while intoxicated case in Texas to receive deferred adjudication.  Texas law does not presently allow for deferred adjudication in Driving While Intoxicated cases. In a deferred adjudication situation, no judicial finding of guilt is made and and the end of the deferral period the case is dismissed 

On its face then, the idea that deferred adjudication might be authorized for those arrested for Driving While Intoxicated in Texas might seem appealing to a person charged with Driving While Intoxicated. The law appears to have law enforcement support, and even M.A.D.D. has publicly endorsed the bill, at least in concept.  Sounds like a win, win doesn't it?   Often, the devil is in the details.

If H.B. 189 becomes law, it will require persons placed on deferred adjudication for DWI to have an Ignition Interlock device installed on any car that they own or operate.  An Ignition Interlock device is a machine that is installed in your car that is designed to indicate the presence of alcohol and disallow the car from starting if alcohol is detected.  This Ignition Interlock device is not presently a requirement for people convicted of DWI unless their alcohol concentration is over a specified amount, but it apparently will be for those placed on Deferred.

The new proposed bill would also prevent those that successfully complete deferred adjudication for DWI from sealing their record.  For most misdemeanor cases, when a person succesfully completes deferred adjudication they are eligible to petition the Court to seal their record.  This sealing is known as an Order of Non Disclosure and a person's ability to seek an Order of Non Disclosure is controlled by the Texas Government Code.  H.B. 189 specifically amends the relevant section of the Government Code to prohibit people who were on deferred adjudication for DWI from receiving an Order of Non Disclosure.

Finally, the first time dwi deferred will be used to enhance the punishment range of subsequent DWI convictions.

I understand the rationale behind the bill.  The goal is to remove a large number of DWI cases from the crowded dockets in Collin and Dallas County and all around Texas.  The thought is that if deferred adjudication is an option, many people with first time DWI cases would opt for the deferred. Under the bill as written however, I don't see the incentive.  You will need an Interlock that is not required by law if you were convicted.  You can never non disclose the deferred, and your deferred case can form the predicate for subsequent punishment enhancements. 

As an attorney representing DWI clients, I don't see the value right now, and ultimately for this proposed law to have its desired effect of unclogging dockets and moving cases, it will have to be written in a way that makes it an attractive alternative to trial. 

Approximately eighteen months ago I wrote here about the decision of the Fort Worth Court of Appeals to uphold a trial judge's ruling that the method by which a Driving While Intoxicated Suspect's blood was drawn at a police station was constitutionally unreasonable.  Because the Court ruled that the manner of the blood draw violated the Fourth Amendnment to the U.S. Constitution's requirement of reasonableness, the Court agreed with the lower Court decision to exclude the results of the blood test from evidence. 

The State sought appeal to the Texas Court of Criminal Appeals and recently the Texas Court of Criminal Appeals reversed the Fort Worth Court of Appeals.   The case is known as State v. Johnson, and in Johnson the Court held that the blood draw was constitutionally reasonable, and appeared to go so far as to indicate that it will presume the constitutional reasonableness of venipuncture blood draws in the future. 

What does this mean for the future of DWI enforcement in practical terms?  I would anticipate that many police agencies will develop programs to draw blood at the station and may arrange to have officers themselves trained to draw blood, as opposed to medical professionals.  I read the Johnson case to "green light" these programs.

On February 17, 2011, the 2nd Court of Appeals in Fort Worth reversed a Driving While Intoxicated conviction.  The case, known as State v. Farmer is a case where the defendant, Mr. Farmer, testified that he took prescribed medications that were set out for him by his wife.  One of the pills was Ambien.  Mr. Farmer testified that because his wife laid out the pills, he had no idea that he was taking Ambien.  In other words, his ingestion of Ambien was an involuntary act.  

 At the close of the case, before the closing arguments are delivered, the trial court instructs the jury on the law that applies in the case to be considered by the jury.  The attorney representing Mr. Farmer properly requested a jury instruction on the issue of whether the ingestion of Ambien was voluntary.  To commit an offense, an act must be voluntary.  The trial Court denied the requested instuction and the jury convicted the defendant. 

On appeal, the Court recognized voluntariness as a defense and reversed the conviction holding that the jury should have been instructed on the voluntary act issue, and given an opportunity to consider Mr. Farmer's testimony as a defense

.  What does this mean for future cases?  It appears that now there will be a recognized defense to DWI cases of voluntariness.  This voluntary act defense should not be confused with involuntary intoxication.  Involuntary intoxication is not a defense.  The voluntariness of an act that leads to intoxication is a legitimate defense issue. 

A blood draw warrant is a search warrant requested by a law enforcement officer and signed by a judge.  It is a search warrant that specifically authorizes the police to have blood drawn from the person of a Driving While Intoxicated suspect.  In almost all cases in which the police seek a search warrant for blood, they do so because a person has refused to submit voluntarily to a request for a blood sample after they have been arrested for Driving While Intoxicated.

When the police seek a search warrant for blood, they must prepare, sign, and swear to an affidavit that seeks to persuade a judicial officer that evidence of the crime of DWI (i.e. alcohol or drugs) will be found in the suspect's blood.  The affidavit is often a pre printed form in which the officer will check the applicable boxes or fill in the blanks.  The officer is then required to present a sworn affidavit to a judge setting forth the facts on which the officer bases his or her request.  The law appears to require that the office appear before the judge and swear to the truth of the matter.    In practice however, the sworn affidavits are sometimes faxed,and the officer is sworn over the phone, not in the judge's presence. This practice may violate the Texas Code of Criminal Procedure, as there is presently no legislative auhortization for faxed search warrant applications as there is in the Federal Rules of Criminal Procedure.  Presumably, if Texas lawmakers wanted faxed search warrants they could pass a law allowing for it.  

The issue of blood draw search warrants being faxed has been raised in Collin.   The Fifth Court of Appeals in Dallas avoided making a decision on the propriety of swearing affiant's over the phone and faxing search warrant affidavits.  In  Swenson v. State  the Court affirmed Mr. Swenson's conviction by finding that, even if having the officer sworn over the phone is unlawful, the search warrant is nevertheless valid under the good faith exception.  In other words, if the officer in good faith relied upon an invalid search warrant, the evidence seized pursuant to the warrant need not be excluded from evidence because the officer relied upon the warrant "in good faith."

The admissibility of blood test results in court may also be challenged in other ways.  For example if the affidavit in support of the search warrant does not establish probable cause. Other potential areas include whether the blood was drawn in a sanitary place, as required by law, or whether the blood was drawn by a qualified person. 

In addition, other factors may bear on whether the seizure of blood is constitutionally reasonable such the location of the draw, the extent to which the person drawing the blood is aware of the particular medical conditions of the suspect, etc. 

A very recent case decided by the Texas Court of Criminal Appeals, the State's highest court of appeals to hear criminal cases, has established the lawfulness of roadside checkpoints under certain circumstances.

This case will affect not only Driving While Intoxicated cases, but all criminal cases and the citizenry in general.  I'll explain.  The Fourth Amendment to the U.S. Constitution ordinarily prohibits the police from stopping your car on a roadway unless the police have some specific, articulable information that gives them reasonable suspicion that you are violating the law. 

Over the years, appeals courts have carved out several exceptions to this ordinary rule, including one known as the special needs doctrine.  Essentially, the special needs doctrine provides that the Government may, for example, stop your car without any information whatsoever that you have engaged in criminal wrongdoing so long as the program set up to stop your car is designed to serve special needs, beyond the normal need for law enforcement.

If on the other hand, the program or checkpoint is set up to detect evidence of ordinary criminal wrongdoing, this would be a violation of the Fourth Amendment as it is not a special need. 

In other words, the Consitution forbids roadside checkpoints that are nothing more than generalized crime detection.  The Constitution does not recognize a general interest in crime control as justification for a suspicionless stop of your car.

Which brings us to the recent case decided by the Texas Court of Criminal appeals.  In January of 2011 the Court decided the case of Lujan v. State of Texas  In Lujan, the Court was faced with a case where the evidence presented at the trial court was contradictory with regard to the true nature of the program.  Was the checkpoint established for the purpose of conducting a license and registration check, and therefore Constitutional, according to the Texas Court of Criminal Appeals?  Or was this a case where the checkpoint was nothing more than an unconstitutional attempt at generalized crime control?

For one brief paragraph, the Court seemed as though it would embark on an extended discussion of the distinction between suspicionless checkpoint regimes justified as a special needs exception, and those suspicionless search and seizure regimes that are forbidden by the Fourth Amendment.

 The Court informed the reader that: 

the legality of the checkpoint in this case turns on whether its primary purpose was to check drivers' licences and insurance, or whether the primary purpose was general crime control.  

But the Court very quickly diposes of the issue presented, essentially holding that the trial Court impliedly found that the primary purpose of the checkpoint was to check for license and registration, and therefore lawful.

What I find troubling about the decision is that the Court is willing to premise a decision that is a significant Fouth Amendment pronouncement on a lower Court's implied findings.  Additionally, the Court is upholding a regime of suspicionless searches under a special needs doctrine and does not even once use the term or acknowledge the existence of the doctrine.

As a practical matter, all Texans should be concerned about this decision.  If our elected representatives in Austin wanted to establish a law creating a checkpoint regime  they could do so.  The Court of Criminal Appeals gave us the blueprint for a lawful checkpoint law over fifteen years ago.  What happened in Lujan is very different.  In Lujan, the Court essentially  endorsed the creation of checkpoint sytems by any law enforcement agency that chooses to undertake them.