Learning Objectives. Outline

Robby Chapman Program Director, TMCEC 2014 Traffic Safety Conference

Learning Objectives

(1)Recognize the offense of DUI and how it is different from a DWI

(2)Describe the paperwork associated with the offense that a clerk may encounter in processing a case from filing through trial

(3)Identify the legal consequences and statutory requirements that result from a DUI

(4)Discuss why this and other alcohol offenses filed in municipal court matter

Outline

I. “Drunk Driving”

II. DWI v DUI

III. What is a DUI?

IV. What Are You Likely to See?

V. Punishment Range

“Drunk Driving”

Nationwide

In 2012, 10,332 people - 31% of all

traffic fatalities in the United States - were killed in drunk driving crashes.

Source: NHTSA

Texas

That same year 1,296 people in Texas

were killed in drunk driving crashes

Underage Drinking

By age 15, half of teens have had at

least one drink

By age 18, more than 70% have had at

least one drink

Source: National Institute on Alcohol Abuse and Alcoholism

19%

19% 62%

Teens Driving Under the Influence of Alcohol

Makes You Better Driver Has No Effect Makes You Worse Driver

DWI v DUI

Aren’t DWI and DUI the same?

Driving While Intoxicated

“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place”

DWI Elements

Defendant Did Operate A Motor Vehicle In a Public Place While intoxicated

Intoxication

(1)Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; OR

(2)Having BAC of .08 or more

Statutes are not “In Pari Materia”

Different subject matters

DWI covers intoxication from alcohol and drugs

DUI covers only alcohol consumption

Different purposes

DWI protects safety from intoxicated persons

driving a vehicle

DUI enacted as part of zero tolerance standard

for minors and to create a separate offense

What is a DUI?

Sec. 106.041, TABC

“A minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any

detectable amount of alcohol in the minor’s system”

DUI Elements

Minor Defendant

Did Operate

A Motor Vehicle or Watercraft

In a Public Place

While Having Any Detectable Amount of

Minor

Person under 21 years of age

Sec. 106.01, TABC

Operate

No statutory definition

Interpreted very broadly

Court of Criminal Appeals:

“The totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use.”

Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App.1995)

(citing Barton v. State, 882 S.W.2d 456, 460 (Tex. App.-Dallas 1994, no writ))

Sufficient evidence of “Operate”

Asleep at the wheel with vehicle idling

and transmission in neutral

Barton v State, 822 S.W.2d 456 (Tex.App. –

Sufficient evidence of “Operate”

Started and revved engine, but did not move

Denton v State, 911 S.W.2d 388 (911 S.W.2d 388 (Tex. Crim. App.1995)

Sufficient evidence of “Operate”

Vehicle parked with engine running in parking

lot at Applebee’s.

Dornbusch v State, 262 S.W.3d 432 (Tex. App. –

Fort Worth 2008, no pet.)

But Be Careful with Jury Charge!

 Although an appellate court may articulate a

definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court's inclusion of that definition in a jury charge constitutes an improper comment on the weight of the evidence

 Jury should be free to assign any meaning in

common parlance to the term

Motor Vehicle or Watercraft

Motor Vehicle means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks (Sec. 32.34, Penal Code)

Watercraft means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water (Sec. 49.01, Penal Code)

Public Place

Public place means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops (Sec. 1.07, Penal Code)

Courts have held that the relevant inquiry is whether public can enter the premises

More Public Places:

Parks

Park hours irrelevant

Perry v State, 991 S.W.2d 50 (Tex.App.— Fort Worth 1998, pet. ref’d)

Parking Lot

Even if there is an entrance fee

State v. Nailor, 949 S.W.2d 357 (Tex.App.— San Antonio 1997, no pet.).

Any Detectable Amount

No statutory definition

Common usage

Zero Tolerance

Prior Driving Records of Drivers

Involved in Fatal Crashes by BAC

0% 5% 10% 15% 20% 25%

BAC .00 BAC .01 - .07 BAC .08

Reported Crashes Prior DWI Prior Speeding

Probable Cause Affidavit

Other traffic offense

Officer observations

Passive Alcohol Sensor

Field Sobriety Tests

Breath test

Officer Observations

Red, glassy, bloodshot eyes

Slurred, hesitant, slow speech

Where is alcohol odor coming from?

What is visible in the car?

Passive Alcohol Sensor (PAS)

Not as evidence of alcohol concentration

But may be used as a sobriety test and show the presence of alcohol

Field Sobriety Tests

One Leg Stand

Walk and Turn

Horizontal Gaze Nystagmus

Non-standard tests

Statutory Warnings

DIC-24 Refusal admissible (Sec. 724.061, TC)

Attorneys

Discovery issues Defense Motions Witness Subpoena Requests

This phrase: “I usually

Punishment Range

DUI Punishment

First • $500 • Alcohol Awareness (Mandatory) • 20 – 40 Community Service • TXDL Suspension 60 days Second • $500 • Alcohol Awareness (Discretionary) • 40 – 60 Community Service • TXDL Suspension 120 days Third • $500-2000 • Alcohol Awareness (Discretionary) • 40-60 Community Service • TXDL Suspension 180 days • 180 Jail • No deferred

Third DUI and Minor Child

“If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section…”

Child Definition

“Child means a person who is ten years old or older and under 17 years old” Sec. 51.02, Family Code

Third Offense for Minor Child

Third Offense Juvenile Case Manager Under 45.056, CCP May Waive Jurisdiction 51.08(d), Family Code Retain Jurisdiction (Remains Class C) No Juvenile Case Manager Shall Waive Jurisdiction 51.08(b)(1)(B), Family Code

Determining DUI Priors

(1) Conviction

(2) Deferred

Disposition

(3) Adjudication Under

Title 3, Family Code, that minor engaged in conduct described in Sec. 106.041

Statutory Requirements

Community Service

Community service must be related to education about or prevention of misuse of alcohol

Sec. 106.041(e), TABC

Alcohol Awareness

Attend an alcohol awareness program

OR a drug and alcohol driving awareness program (DADAP)

New Subsection (b-1)

(1)If defendant resides in a county with a

population of 75,000 or less; and

(2)Access to an alcohol awareness

program is not readily available

Then May Take Online Course or

Community Service

Online course approved by the

Department of State Health Services

Community Services approved by the

Department under (b-3)

Not less than eight hours of community

service related to alcohol abuse prevention or treatment

Sec. 106.115(b-3)

The Department of State Health Services shall create a list of community services related to alcohol abuse prevention or treatment in each county

Suspensions

Sec. 524.022, TC First • 60 days • Not eligible occupational for first 30 days Second • 120 days • Not eligible occupational for first 90 days Third • 180 days • Not eligible occupational for entire suspension

Questions?