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. 

wadaslawoffice.com

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

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