driving while intoxicated -- texas

Memorandum – Driving While IntoxicatedCharles B. “Brad” Frye Lindeman, Alvarado & Frye 1

CHARLES B. “BRAD” FRYEATTORNEY AND COUNSELOR AT LAW

LINDEMAN, ALVARADO & FRYE808 Travis, Suite 1101

Houston, Texas 77002MEMORANDUM (713) 236-8700Driving While Intoxicated

This Memorandum has NOT been updated to include the 2009 legislative changes regardingmandatory blood draws.

This memorandum is intended to acquaint you with the offense of driving whileintoxicated, the elements of proof and evidence necessary for the State to obtain a conviction, therange of punishment for the offense, and the types of punishment normally considered by courtswhen assessing punishment for this offense.

You should know that your situation will depend on the specific facts of your case. Whathappens to your case will depend, ultimately, on an assessment of the facts of your particularsituation, your background, your history with the criminal justice system, (if any), and yourcurrent life situation.

While this memorandum contains specific references to statutes and cases, it is notnecessary for you to remember or read all of those references. They are included so that if youhave a more in-depth question, or if you want to check on the statute or the case law authoritycited, you may do so.

Finally, this memorandum is intended to give you general information only. If you haveany questions, you should consult with us.

Elements of the Offense

Like any other criminal charge, the charge of “driving while intoxicated” is made up ofcertain “elements.” In the case of a DWI charge, the State must prove certain things, or“elements,” such as that you were driving a vehicle, in a public place or public thoroughfare,while intoxicated. If the State fails to prove an “element,” or if an “element” of the chargedoesn’t exist or isn’t true, you may be acquitted of the charge as a whole.

When we evaluate a criminal charge, one of the first things we do is check to see if all ofthe “elements” of that charge are supported by the evidence.

“Public Place”

The first “element” we will discuss in reference to a DWI charge is that the State must


prove that you operated a motor vehicle in a “public place.” A person commits an offense bydriving or operating a motor vehicle in a public place while intoxicated. Penal Code §49.04(a). Proof of a culpable mental state is not required for conviction of this offense. In other words,the States doesn’t have to prove that you “intended” to drive while intoxicated. Since proof of aculpable mental state is not required for this offense, defenses such as insanity are not available. Reed v. State, 916 S.W.2d 591, 593 (Tex. App.-- Amarillo 1996, pet. ref.).

A “public place” is any place to which the public, or a substantial group of the public, hasaccess. This includes, but is not limited to, streets, highways, and the common areas of schools,hospitals, apartment houses, office buildings, shops, and transportation facilities. Penal Code§1.07(a)(40). For example, the parking lot of a multi-unit condominium complex that isaccessible to a substantial group of the public is a public place for purposes of this definition. State v. Nailor, 949 S.W.2d 357, 359 (Tex. App.--San Antonio 1997) -- in that case, the court ofappeals held that a hotel parking lot is a “public place” despite having a requirement of anentrance fee. The definition of “public place” is cast in broad language in the statute. Thus, forexample, the fact that a park’s hours of operation have ended and the public is no longersupposed to use the park is irrelevant to the determination of whether the place is one to whichthe public has access. See Perry v. State, 991 S.W.2d 50, 52 (Tex. App.-- Fort Worth 1998, pet.ref'd). An information (the charging instrument filed by the State setting out the allegation thatyou committed the crime charged) alleging that the act occurred in a public place withoutspecifying the place involved is not subject to a motion to quash for lack of specificity. King v.State, 732 S.W.2d 796, 803-804 (Tex. App.--Fort Worth 1987, pet. ref.).

Intoxication

A person is deemed to be intoxicated for purposes of this offense when he or she does nothave the normal use of mental or physical faculties by reason of the introduction of alcohol, acontrolled substance, a drug, a dangerous drug, a combination of two or more of thesesubstances, or any other substance into the body. Penal Code §49.01(2)(A). The terms“controlled substance,” “drug,” and “dangerous drug” are defined in the Health and Safety Code.

A person is also considered to be intoxicated when he or she has an alcoholconcentration of 0.08 or more. Penal Code §49.01(1). “Alcohol concentration” is the number ofgrams of alcohol per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine.

In a prosecution for driving while intoxicated under the first definition of intoxication,the type of intoxicant used is an element of the offense. Therefore, an information charging thedefendant with DWI under that definition must allege the type of intoxicant, either singularly orin disjunctive combination with other types of intoxicant. Garcia v. State, 747 S.W.2d 379, 381(Crim. App. 1988). The current statute requires that the type of intoxicant be specified inprosecutions for both driving while intoxicated and intoxication manslaughter under Penal CodeSection 49.08. Saathoff v. State, 891 S.W.2d 264, 265-266 (Crim. App. 1995).


However, it has also been held that an information alleging the influence of intoxicatingliquor will support a conviction based on intoxication due either to liquor alone or to a combination of liquor and drugs, when this is raised by the evidence. Sutton v. State, 899S.W.2d 682, 683-685 (Crim. App. 1995). Moreover, a conviction may be upheld when intoxication is alleged to be due to liquor and drugs, but there is no evidence of drugs. Dewitt v.State, 763 S.W.2d 524, 526-527 (Tex. App.--El Paso 1988, pet. ref.).

The definition of intoxication based on alcohol concentration serves to turn the statutorypresumption of intoxication based on an alcohol concentration of 0.08 percent or more into alegal definition of intoxication. The excessive alcohol concentration does not create anirrebuttable presumption of intoxication, but rather defines the offense and becomes an elementof it. Forte v. State, 707 S.W.2d 89, 94-95 (Crim. App. 1986).

A charging instrument alleging driving while intoxicated must allege which of the twodefinitions of intoxication the State will rely on at trial, in addition to the type of intoxicant thedefendant is alleged to have used. That is, the State must indicate whether it intends to prove intoxication through evidence of loss of faculties, evidence of the defendant’s alcoholconcentration, or both methods. The State may specifically allege, in the conjunctive ordisjunctive, either or both of the definitions. The purpose of this rule is to put the defendant onclear notice of what the State will attempt to prove at trial. State v. Carter, 810 S.W.2d 197,199-200 (Crim. App. 1991).

If both methods of proving intoxication are alleged in the information and the jury ischarged disjunctively, a general verdict is proper and will support a conviction under eithertheory that is supported by the evidence. Sims v. State, 735 S.W.2d 913, 915 (Tex. App.--Dallas1987, pet. ref.).

Driving a Motor Vehicle

A motor vehicle is a device in, on, or by which a person or property is or may betransported or drawn on a highway, except a device used exclusively on stationary rails or tracks. Penal Code §49.01(3).

Under this definition, an information charging a defendant with driving an automobilewill support a conviction even though the evidence shows that the vehicle was actually amotorcycle. Small v. State, 631 S.W.2d 201, 201 (Tex. App.--Corpus Christi 1982, no pet.).

The word “operate” contemplates the doing of something or the making of some effort bythe driver. Reddie v. State, 736 S.W.2d 923, 926 (Tex. App.--San Antonio 1987, pet. ref.). Forexample, the phrase “driving and operating a motor vehicle” has been held to include steering a motor vehicle without the engine running while being pushed by another motor vehicle. Chamberlain v. State, 163 Crim. R. 529, 294 S.W.2d 719, 720 (1956). Nevertheless, thedefinition of “operating” given in Reddie was not followed in another case, in which the court


found sufficient evidence of operation when the intoxicated defendant was found asleep in a

stopped vehicle that had the engine idling and the transmission in neutral. Barton v. State, 882S.W.2d 456, 459 (Tex. App.--Dallas 1994, -- --).

Before the current Penal Code was enacted, the offense of driving while intoxicated wasalso committed by the owner of an automobile who, while a passenger, permitted another personto drive the automobile when the owner knew that the person driving was intoxicated. Thevehicle owner was held to be criminally responsible just as if he or she were the driver of thevehicle, provided that the necessary elements existed to make the owner of the vehicle a principalin the offense. Joiner v. State, 161 Crim. R. 526, 279 S.W.2d 333, 334 (1955).

It is open to question whether the same result would be reached under more recent PenalCode provisions defining parties and establishing criminal liability for the conduct of another. Penal Code §§7.01, 7.02.

Chemical Tests

Requirements for Admissibility

Chapter 724 of the Transportation Code sets forth the requirements for administeringchemical tests to determine the intoxication of the accused. Transportation Code, §724.001 etseq.; see Langford v. State, 532 S.W.2d 91, 93-95 (Crim. App. 1976).

If the results of a chemical test are erroneously admitted into evidence, a conviction fordriving while intoxicated may nonetheless be affirmed if there is sufficient independent evidenceto support the conviction. In the court’s opinion in Rangel v. State, 502 S.W.2d 152, 153-154(Crim. App. 1973), an officer’s testimony regarding the defendant’s behavior was sufficient independent evidence to support determination that the defendant was intoxicated.

In a trial for any criminal action or proceeding arising out of an offense involving theoperation of a motor vehicle or watercraft under Chapter 49 of the Penal Code, (such as drivingwhile intoxicated), the parties are entitled to introduce evidence concerning the defendant’salcohol concentration or the presence of a controlled substance, drug, dangerous drug, or othersubstance as shown by an analysis of a specimen of the defendant’s blood, breath, urine, or anyother bodily substance, taken at the request or order of a peace officer. When a person has beengiven a chemical test at the request of a peace officer, the person is entitled to a full report of theresults of the test on request.

The type of specimen to be submitted is solely within the discretion of the arrestingofficer. White v. State, 711 S.W.2d 106, 108 (Tex. App.--Houston [14th Dist.] 1986, no pet.). Infact, there is no due process requirement that a person be afforded the opportunity to take a


chemical test, such as a blood test, [Graham v. State, 665 S.W.2d 832, 833-834 (Tex.App.--Dallas 1984), aff'd in part, rev'd in part on other grounds, 710 S.W.2d 588, 593-594(Crim. App. 1986)], nor does the implied consent law create a mandatory duty to administer atest or a specific test. Growe v. State, 675 S.W.2d 564, 567 (Tex. App.--Houston [14th Dist.]1984, no pet.).

A breath specimen taken at the request or order of a peace officer must be taken andanalyzed under the rules of the Department of Public Safety by an individual possessing acertificate issued by the department, certifying that the individual is qualified to perform theanalysis. Transportation Code, §724.016; May v. State, 784 S.W.2d 494, 496-98(Tex.App.--Dallas 1990, pet. ref.). Breath test results may be excluded at trial when the DPSrules are not followed. Boss v. State, 778 S.W.2d 594, 595 (Tex.App.--Austin 1989). In order toadmit the results of an intoxilyzer test into evidence, the State is required to show: (1) that themachine functioned properly on the day of the test as evidenced by the running of a referencesample (which is supposed to be done automatically when the test is administered); (2) theexistence of periodic supervision over the machine and operation by one who is qualified; and (3)proof of the results of the test by a witness qualified to translate and interpret such results. Harrell v. State, 725 S.W.2d 208, 209 (Crim.App. 1986). The issue of compliance with the DPSrules only arises when the State introduces evidence of the actual results of the breath test. Kercho v. State, 948 S.W.2d 34, 38 (Tex.App.--Houston [14th Dist.] 1997, pet. filed). Whilethere is statutory language indicating that DPS rules must be followed when the test isadministered in order to admit the results of a breath test at trial, the statute does not mandate thatthe State must affirmatively introduce testimony as to compliance with each of the DPS rules as apredicate to admissibility unless a fact issue concerning a particular rule has been raised.

A blood specimen taken at the request of a peace officer must be withdrawn by aphysician, qualified technician, chemist, registered professional nurse, or licensed vocationalnurse. For purposes of this statute, the term qualified technician does not include emergency medical services personnel. Transportation Code, §724.017. It must be established as apredicate for admission that the blood sample tested was the same specimen actually taken fromthe defendant. The statute also requires that the blood sample be taken in a sanitary place.

When a person gives a specimen for a test, the person may, on request and within areasonable time not to exceed two hours after the arrest, have a physician, qualified technician,chemist, or registered nurse of his or her own choosing draw a specimen and have an analysismade of his or her blood, in addition to any specimen taken and analyzed at the direction of the peace officer. The person must be allowed a reasonable opportunity to contact somebody todraw blood, but the officers are not required to transport the person to that individual for testing.Moreover, the failure or inability to obtain this additional specimen or analysis does not precludethe admission of evidence relating to the analysis of the specimen taken at the direction of thepeace officer. Transportation Code §724.019. In addition, there is no right to a later blood testwhen the person has refused to provide the original sample requested by an officer. In suchcases, the officer has no obligation to inform the person of any right to have a subsequent sample


drawn. Finley v. State, 809 S.W.2d 909, 913 (Tex. App.--Houston [14th Dist.] 1991, pet. ref.).

Nevertheless, the defendant may introduce at trial the fact that a request to take anadditional test was refused. Transportation Code §724.062. When the defendant does have a testtaken after arrest, the defendant should be prepared to show chain of custody at trial to establishadmissibility.

Consent to Take Tests

Any person who operates a motor vehicle in a public place, or a watercraft, in Texas isdeemed to have given consent to submit to the taking of a specimen of his or her breath or bloodfor the purpose of determining the alcohol concentration, or the presence of a controlledsubstance, drug, dangerous drug, or other substance, when the person is arrested for any offensearising out of acts alleged to have been committed while the person was operating a motorvehicle while intoxicated. Transportation Code §724.011(a); State v. Williams, 814 S.W.2d 256,259 (Tex. App.--Austin 1991), aff'd, 832 S.W.2d 52 (Crim. App. 1992). That’s normallyreferred to as the “implied consent” law.

However, it should be noted that consent is not implied unless the officer had reasonablegrounds to believe person was driving while intoxicated when the officer stops the accused andrequests the test. The implied consent law applies only to breath or blood tests, although theperson may voluntarily consent to the administration of any other tests. Transportation Code§724.011(b). The peace officer has the right to designate the type of specimen to be taken. Transportation Code §724.012(c); White v. State, 711 S.W.2d 106, 108 (Tex. App.--Houston[14th Dist.] 1986, no pet.).

Although a person gives implied consent to take these tests, the person also retains anabsolute right to refuse a test under the terms of the statute. Transportation Code §724.013.Thus, actual consent is still a requirement under the statute. The person’s consent must bevoluntary, and must not be the result of physical or psychological pressures brought to bear bylaw enforcement officials. Erdman v. State, 861 S.W.2d 890, 893 (Crim. App. 1993).

The State must prove that actual consent was positive and unequivocal, and that theofficer involved did not use duress or coercion, actual or implied, in obtaining consent. State v.Williams, 814 S.W.2d 256, 260 (Tex. App.--Austin 1991), aff'd, 832 S.W.2d 52 (Crim. App.1992). There may also be an issue of voluntariness if the police use deceit to obtain a sample. McKenna v. State, 671 S.W.2d 138, 139 (Tex. App.--Houston [1st Dist.] 1984, pet. ref.). Similarly, consent is not voluntary if it is induced by the officer’s misstatement of theconsequences of refusal. State v. Sells, 798 S.W.2d 865, 867 (Tex. App.--Austin 1990, no pet.).


Since the taking of a chemical test is not a testimonial communication, there need not beany Miranda warnings prior to its administration. Rodriguez v. State, 631 S.W.2d 515, 517(Crim. App. 1982). There is also no federal or state constitutional right to counsel before making

the decision of whether to take a chemical test. McCambridge v. State, 778 S.W.2d 70, 72(Crim. App. 1989).

However, before requesting a person to submit to the taking of a specimen, the officer isrequired by statute to inform the person both orally and in writing of the following matters[Transportation Code §724.015]:

1. If the person refuses to submit to the taking of the specimen, the refusal may beadmissible in a subsequent prosecution.

2. If the person refuses to submit to the taking of the specimen, the person’s license tooperate a motor vehicle will be automatically suspended, whether or not the person issubsequently prosecuted as a result of the arrest. The suspension is for not less than 90days if the person is 21 years of age or older, and for one year if the person is younger than 21 years of age.

3. If the person submits to the taking of a specimen and analysis shows the person had analcohol concentration above the statutory limit, the person’s license to operate a motorvehicle will be automatically suspended for not less than 60 days, whether or not theperson is subsequently prosecuted as a result of the arrest.

4. If the officer determines that the person is a resident without a license to operate amotor vehicle in Texas, the department will deny the person the issuance of a license,whether or not the person is subsequently prosecuted as a result of the arrest, if the personrefuses to submit to the taking of a specimen or if the alcohol concentration is above thestatutory limit. If the person refuses to submit to the taking of a specimen, the denial isfor not less than 90 days if the person is 21 years of age or older, and for one year if theperson is younger than 21 years of age. If the alcohol concentration is greater than thestatutory limit, the denial is for not less than 60 days.

5. The person has a right to a hearing on the suspension or denial if, not later than the15th day after the date on which the person receives the notice of suspension or denial oron which the person is considered to have received the notice by mail as provided by law,the department receives, at its headquarters in Austin, a written demand, or a request forthe hearing in another form prescribed by the department, including a request byfacsimile.

These warnings are mandated by the statute. However, any additional warning about the


effects of refusal, even if accurate, may constitute coercion that would render the suspect’sconsent involuntary. For example, consent was not shown to be voluntary in a case in which theofficer gave additional “warnings” that the suspect would be jailed and charged with drivingwhile intoxicated if he refused to submit to testing, and there was no evidence showing that theadditional warnings had no bearing on the suspect’s decision to consent. Erdman v. State, 861S.W.2d 890, 893-894 (Crim. App. 1993). Additionally, consent is not voluntary if it is inducedby the officer’s misstatement of the consequences of refusal. State v. Sells, 798 S.W.2d 865, 867(Tex. App.--Austin 1990, no pet.).

Refusal to Take Tests

A specimen may generally not be taken from a person who refuses to submit to theprocedure. Transportation Code, §724.013. As an exception to this rule, however, an officermust require the taking of a specimen of the person’s breath or blood if all of the followingconditions are true [Transportation Code §724.012(b)]:

1. The officer arrests the person for an intoxication or alcohol offense involving theoperation of a motor vehicle or a watercraft.

2. The person was the operator of a motor vehicle or a watercraft involved in an accidentthat the officer reasonably believes occurred as a result of the intoxication or alcoholoffense.

3. At the time of the arrest the officer reasonably believes that a person has died or willdie as a direct result of the accident.

4. The person refuses the officer’s request to submit to the taking of a specimenvoluntarily.

A person who is dead, unconscious, or otherwise incapable of refusal is considered not tohave withdrawn the implied consent provided by Transportation Code Section 724.011. If the person is dead, a specimen may be taken by the county medical examiner, or by a licensedmortician or other authorized person if there is no county medical examiner for the county. If theperson is alive but is incapable of refusal, a specimen may be taken in the ordinary manner. Transportation Code, §724.014.

Before making the request for a specimen, the officer must inform the person of certainconsequences of refusal to submit as discussed above. If a person refuses the request, the officermust request the person to sign a statement that (1) the officer requested that the person submit tothe taking of a specimen, (2) the person was informed of the consequences of not submitting tothe taking of a specimen, and (3) the person refused to submit to the taking of a specimen. Transportation Code, §724.031.


A person’s refusal of a request by an officer to submit to the taking of a specimen may beintroduced in evidence at the person’s trial, whether the refusal was express or the result of anintentional failure to give the specimen. Transportation Code §724.062. A defendant’s refusalto consent to testing is not protected from admission into evidence by the state or federalconstitution or by the Code of Criminal Procedure. McGinty v. State, 723 S.W.2d 719, 721-722(Crim. App. 1986); Thomas v. State, 723 S.W.2d 662, 666 (Crim App. 1986). However, becauserefusal to submit is in the nature of an incriminating act or statement, a defendant’s refusal maynot be admissible in evidence if the statutory warning was not given. Janek v. State, 826 S.W.2d803, 805 (Tex. App.--Texarkana 1992, no pet.). But see Hogue v. State, 752 S.W.2d 585,589-590 (Tex. App.--Tyler 1987, pet. ref.) where the court held that the warnings were notrequired if the test was taken voluntarily by the defendant. The reason the defendant refused totake a breath test is not admissible as part of the state’s case. However, it could be relevant andadmissible as part of the defense. Jamail v. State, 787 S.W.2d 380, 383 (Crim. App. 1990). Butsee the court’s opinion in Gaddis v. State, 753 S.W.2d 396, 398-400 (Crim. App. 1988) wherethe State was permitted to argue that the defendant refused to take breath test for fear of failingwhere the defense offered another reason for the failure to take the test.

Suspension or Denial of License

If a person refuses to submit to the taking of a blood or breath specimen, whetherexpressly or because of an intentional failure of the person to give the specimen, the peace officermust serve notice of license suspension or denial of issuance of a license on the person and makea written report of the refusal on a designated form. This is the “ALR” procedure --Administrative License Revocation -- administered by the Department of Public Safety (DPS).

If the officer fails to serve notice of suspension or denial of a license, the Department ofPublic Safety will mail the notice when it receives the officer’s report. The notice of suspensionor denial of a license must state (1) the reason and statutory grounds for the action; (2) theeffective date of the suspension or denial; (3) the right of the person to a hearing; (4) how torequest a hearing; and (5) the period in which a request for a hearing must be received by thedepartment. Transportation Code, §724.034. The suspension or denial takes effect on the 40thday after the date on which the person receives actual or constructive notice.

The period of suspension or in which issuance of a license is denied varies based on theperson’s driving record. The basic period of suspension or denial is 90 days if the person is 21years of age or older, and one year if the person is younger than 21 years of age. The period of suspension or denial is180 days if the person’s driving record shows one or more alcohol-relatedor drug-related enforcement contacts not involving convictions during the five years precedingthe date of the person's arrest. In this context, an alcohol-related or drug-related enforcement contact is a driver’s license suspension, disqualification, or prohibition order under the laws ofTexas or another state after a person arrested for driving while intoxicated either has refused tosubmit to a blood or breath test or has submitted to a test revealing an unlawful alcohol concentration. Transportation Code, §724.035. The period of suspension or denial is one year if


the person’s driving record for the past five years shows one or more driver’s license suspension,disqualification, or prohibition orders made under the laws of Texas or another state after the person was convicted of driving while intoxicated.

The defendant is entitled to a hearing on the suspension or denial if one is properlyrequested. If, not later than the 15th day after the date on which the person receives actual orconstructive notice of the suspension or denial, the Department of Public Safety receives at its headquarters in Austin, in writing, including a facsimile transmission, or by another mannerprescribed by the department, a request that a hearing be held, the State Office of AdministrativeHearings must hold a hearing. The hearing may be held not earlier than the 11th day after thedate the person is notified, unless the parties agree to waive this requirement, and must take placebefore the effective date of the notice of suspension or denial. A request for a hearing stays thesuspension or denial until the date of the final decision of the administrative law judge.

The issues at the hearing are whether (1) reasonable suspicion or probable cause existedto stop or arrest the person; (2) probable cause existed to believe that the person was operating amotor vehicle in a public place while intoxicated; (3) the person was placed under arrest by theofficer and was requested to submit to the taking of a specimen; and (4) the person refused tosubmit to the taking of a specimen on request of the officer. It may also be argued that therefusal must be knowing and voluntary. See Landin v. Texas Dept. of Public Safety, 475 S.W.2d594, 596 (Crim. App. 1971).

If the administrative law judge finds in the affirmative on each issue, the suspensionorder is sustained or the denial of issuance of a licence continues. Otherwise, the departmentmust reinstate the person’s license or rescind any order denying the issuance of a license. Anappeal from the judge’s decision may be taken in the manner prescribed for other suspensions. Aperson waives the right to a hearing and any appeal if the person fails to properly request ahearing or fails to appear without good cause. A suspension based on refusal to submit to thetaking of breath or blood specimens may not be probated.

After the suspension or denial period has ended, the person’s license may not bereinstated or a new license issued until the person pays to the department a fee of $100 inaddition to any other fee required by law. Transportation Code, §724.046(a).

The determination of the department or administrative law judge is a civil matter, isindependent of and is not an estoppel as to any matter in issue in an adjudication of a relatedcriminal charge, and does not preclude litigation of the same or similar facts in a criminalprosecution. Conversely, the disposition of a criminal charge does not affect a license suspension or denial and is not an estoppel as to any matter in issue in a suspension or denialproceeding. However, if a criminal charge for an intoxication or alcohol offense under the PenalCode results in an acquittal, a suspension may not be imposed. If a suspension has already beenimposed, the department must rescind the suspension and remove references to the suspension from the computerized driving record of the individual.


Please note that periods of suspension are subject to legislative andadministrative change. You should consult the latest regulations and

statutes regarding periods of suspension that may apply to your circumstances.

Other Evidence

Direct evidence other than chemical tests is admissible to show the defendant’sintoxication. A non-expert witness, such as a police officer or a lay person, may express his orher opinion as to the defendant’s intoxication based on observation of the defendant’s behavior. Vestal v. State, 402 S.W.2d 195, 197 (Crim. App. 1966); Nichols v. State, 504 S.W.2d 462,463-464 (Crim. App. 1974); Lewis v. State, 708 S.W.2d 561, 562 (Tex. App.--Houston [1stDist.] 1986, no pet.). In Lewis v. State, the court held that the officer’s testimony of intoxicationwas sufficient by itself for conviction despite a “zero” reading on breath test machine. This mayinclude testimony regarding a horizontal gaze nystagmus test. Howard v. State, 744 S.W.2d 640,641 (Tex. App.--Houston [14th Dist.] 1987, no pet.). However, although the defendant’sperformance on this test is admissible as evidence of intoxication, the test is not sufficientlyreliable to support specific blood alcohol testimony. Emerson v. State, 880 S.W.2d 759, 768-769(Crim. App. 1994), cert. denied, -- U.S. --, 115 S. Ct. 323, 130 L. Ed. 2d 284 (1994)]; Moreno v.State, 944 S.W.2d 685, 694 (Tex. App.--Houston [14th Dist.] 1997, pet. filed).

The defendant’s intoxication may also be shown by circumstantial evidence. Gilder v.State, 474 S.W.2d 723, 724 (Crim. App. 1972). Evidence such as the discovery of empty orpartially filled liquor bottles found in the vehicle may be admitted as bearing on this issue. Sifford v. State, 511 S.W.2d 526, 527 (Crim. App. 1974). However, such evidence, alone, maybe held to be insufficient to prove intoxication. Thurman v. State, 167 Crim. R. 21, 317 S.W.2d737, 738 (1958). Further, although evidence of traffic citations is generally not admissible,citations may be admissible if the conduct that provided the basis for their issuance shows theimpairment of the defendant’s faculties. Nevarez v. State, 671 S.W.2d 90, 92 (Tex. App.--ElPaso 1984, no pet.). The offense may not be proved solely by use of the defendant’s extrajudicialconfession. Coleman v. State, 704 S.W.2d 511, 512 (Tex. App.--Houston [1st Dist.] 1986, pet.ref.).

Circumstantial evidence most often becomes a factor when there is an issue aboutwhether the defendant had been driving the vehicle. If no one actually saw the defendant drivethe vehicle, the surrounding circumstances must be assessed to determine if they exclude everyreasonable hypothesis other than the defendant’s having driven the vehicle. Ford v. State, 571S.W.2d 924, 926 (Crim. App. 1978). This is of necessity a determination that must be made on acase-by-case basis. The following are examples of cases in which the circumstances have beenfound sufficient to indicate the defendant was driving the vehicle:


1. The defendant was the sole occupant of the car and was found slumped over thesteering wheel after a collision. Thomas v. State, 162 Crim. R. 268, 283 S.W.2d 933,934 (1955).

2. The defendant was the sole occupant of the car and was found behind the steeringwheel of a car parked partly on the highway with exhaust coming from the tail pipe. Keenan v. State, 700 S.W.2d 12, 14 (Tex. App.--Amarillo 1985, no pet.).

The following are examples of cases in which the circumstances have been foundinsufficient to indicate that the defendant was driving the vehicle:

1. The vehicle was found completely off the road with no indication that it had been onthe road or that the defendant had driven it. Ford v. State, 571 S.W.2d 924, 925-926(Crim. App. 1978).

2. The defendant was the sole occupant and was found in the front seat after an accident. Avants v. State, 170 Crim. R. 307, 340 S.W.2d 817, 817 (1960).

3. The defendant was found slumped over the steering wheel of a vehicle idling in theroad with the transmission in park, but there was no evidence as to the length of time thecar had been there or as to the car registration. Reddie v. State, 736 S.W.2d 923, 927(Tex. App.--San Antonio 1987, pet. ref.).

4. The defendant was found unconscious and intoxicated in the driver’s seat of a carparked on the shoulder of the road with the engine idling. Ballard v. State, 757 S.W.2d389, 391 (Tex. App.--Houston [1st Dist.] 1988, pet. ref.).

A defendant’s extra-judicial statement may be used to prove that the defendant wasdriving if the statement is corroborated by surrounding circumstances. Even though the state hasestablished the fact of the defendant’s driving, there must also be evidence to fix the time of thedriving to furnish the jury with an informed basis for determining any relationship between thedefendant’s driving and his or her intoxication. Weaver v. State, 721 S.W.2d 495, 498 (Tex.App.--Houston [1st Dist.] 1986, pet. ref.).

Videotaping

Each county with a population of 25,000 or more according to the last federal census hasthe obligation of purchasing and maintaining electronic devices to visually record a personarrested for driving while intoxicated when the offense occurred before September 1, 1994. When an arrest occured in such a county, the failure to record the defendant may be adduced inevidence at the trial. This is the exclusive remedy for the failure to videotape the defendant; the


case is not dismissed nor are the charges against you reduced. Dismissal for this failure is notrequired even if it is shown that the police wilfully failed to make the recording. Green v. State,745 S.W.2d 477, 478 (Tex. App.--Corpus Christi 1988, pet. ref.).

Also, a defendant is not entitled to a dismissal if the police, after recording the defendant,inadvertently destroyed the videotape. Shaw v. State, 728 S.W.2d 889, 893 (Tex. App.--Houston[1st Dist.] 1987, no pet.). The defendant is not even entitled to a jury instruction on this issue,since that would be a comment on the weight of the evidence. Franks v. State, 724 S.W.2d 918,920 (Tex. App.--San Antonio 1987, no pet.).

A defendant has no right to consult with an attorney before performing videotapedsobriety tests. The video portion of a sobriety test is not testimonial in nature; thus, there is noFifth Amendment protection and the videotape may be admitted even though the defendantrequested an attorney. Miffleton v. State, 777 S.W.2d 76, 78-80 (Crim. App. 1989). The audioportion of the videotape is also admissible unless the police conduct depicted in the videotapeexpressly or impliedly calls for a testimonial response from the defendant not ordinarily incidentto arrest and custody or is conduct the police should know is reasonably likely to elicit such aresponse. Jones v. State, 795 S.W.2d 171, 176 (Crim. App. 1990).

If the defendant requests the opportunity to consult with counsel, the audio portion of thevideotape should not be played for the jury in order to prevent the unconstitutional inference thatthe defendant is guilty because of the request for counsel. Hardie v. State, 807 S.W.2d 319, 322(Crim. App. 1991). Merely turning down the volume of the audio portion after the jury has beenallowed to hear the officer giving the defendant warnings on the tape fails to adequately protectthe defendant’s invocation of rights in some circumstances. Dumas v. State, 812 S.W.2d 611,614 (Tex. App.-- Dallas 1991, pet. ref'd). However, if after the warnings there are sufficientintervening discussions and activities, the reading of the Miranda warnings by themselves are notsubject to suppression unless the reading, in conjunction with the turning down of the audio,could lead the jury to the conclusion that the defendant invoked his or her rights. Morris v. State,897 S.W.2d 528, 532-33 (Tex. App.-- El Paso 1995, no pet.). The video portion of the tape aswell as portions of the audio not involving an invocation of constitutional rights may beintroduced to demonstrate the defendant's demeanor or quality of voice as evidence of the degreeof the defendant’s intoxication because this evidence is non-testimonial in nature. Jones v. State,795 S.W.2d 171, 175 (Crim. App. (1990).

Whether the verbal responses of a DWI suspect that show mental confusion aretestimonial in nature and, thus, inadmissible if not preceded by Miranda warnings, has been thesubject of interesting debate. For example, in Pennsylvania v. Muniz, 496 U.S. 582, 611, 110 S.Ct. 2638, 110 L. Ed.2d 528 (1990), the accused was asked seven questions regarding his name,address, weight, eye color, date of birth, and current age following his DWI arrest. Thedefendant was then asked the date of his sixth birthday. The Muniz Court held that the firstseven questions were “for record-keeping purposes only and therefore fall outside the protections


of Miranda thereby not warranting the imposition of the Fifth Amendment.” Thus, any slurringof speech and other evidence of a lack of muscular coordination revealed by the answers to theofficer’s direct questions constituted nontestimonial responses for purposes of the FifthAmendment protection against self-incrimination. However, the response to the sixth birthdayquestion was testimonial in nature, and not properly admitted in the absence of Mirandawarnings. Prior to Muniz, the Court of Criminal Appeals held that reciting the alphabet andcounting were not testimonial because these communications were physical evidence of thefunctioning of a defendant’s mental and physical faculties. Jones v. State, 795 S.W.2d 171, 175(Crim.App. 1990, reh’g denied).

While the decision in Muniz cast doubt on the continuing validity of this holding, theCourt of Criminal Appeals has reaffirmed this conclusion in a decision issued after Muniz. Gassaway v. State, 957 S.W.2d 48, 50 (Crim. App. 1997).

Defenses

It is no defense to a charge of driving while intoxicated that the defendant had alegitimate or necessary purpose for driving while intoxicated. For example, it has been held thata defendant did not have a defense when he drove while intoxicated to seek medical treatment fora serious head injury that he had sustained. Butterfield v. State, 167 Crim. R. 64, 317 S.W.2d943 (1958). Similarly, an intoxicated passenger is not justified in taking the wheel when thedriver is also intoxicated solely for the purpose of stopping the car in obedience to a policeofficer’s signal to stop. Sansom v. State, 390 S.W.2d 279, 279-280 (Crim. App. 1965).

Other factors or conditions held not to be a defense to driving while intoxicated include apassive-dependent personality, an addiction to alcohol, susceptibility to illness, loss of sleep, orbeing under the influence of aspirin or Anacin. Humphrey v. State, 159 Crim. R. 396, 264S.W.2d 432, 433 (1953); see also Aliff v. State, 955 S.W.2d 891, 893 (Tex.App.--El Paso, 1997). Likewise, the defenses of involuntary intoxication and insanity not available in DWI cases. It isalso not a defense that the person was legally entitled to use the alcohol, controlled substance,drug, dangerous drug, or other substance. Penal Code §49.10.

However, the defendant is entitled to raise and have the jury instructed on an affirmativedefense when the evidence shows that the defendant had not consumed any prohibited substanceprior to the incident in question and that independent facts or conditions accounted for the defendant’s appearance, manner, and conduct. Loftin v. State, 366 S.W.2d 940, 941-942 (Crim.App. 1963).

Further Notes on the “Breath Test” and Available Defense Strategies

All breath tests are designed to measure the alcohol content of the air in the subject’slungs. The test is based on the principle that the ratio of alcohol present in alveolar air (air foundin the air cells of the lungs) to blood alcohol content is 1:2100. This means there is the same


amount of alcohol in one milliliter of blood as there is in 2100 milliliters of alveolar air. Itshould be noted that this principle has been seriously questioned by some researchers. It hasbeen posited that this figure is actually an average, and that the blood-breath coefficient actuallyvaries from 1:1500 to 1:3000. The breath-testing devices most commonly used are thebreathalyzer, intoxilyzer, and gas chromatograph intoximeter.

The device most commonly confronted in intoxication cases is the breathalyzer. Thereare three basic steps involved in the breathalyzer procedure:

1. Collecting the breath sample from the subject;2. Passing the breath sample through the colored solution in the test ampule; and3. Measuring the color loss of the solution in the test ampule.

The breath sample is collected by having the subject blow into an intake valve directlyconnected to the machine, or into a collection unit if the sample is obtained in the field. The firstpart of the air expended by the subject is eliminated, so that only alveolar air remains in thebreath sample. The sample is then “bubbled” through an ampule containing a yellow,alcohol-sensitive solution of sulfuric acid and potassium dichromate. The volume of the solutionmust be 3 cc, plus 0.10 cc or minus 0.00 cc. A false high reading may result if the ampulecontains too little solution. The machine also contains a control ampule of the same solutionwhich is not mixed with the breath sample. Both ampules must contain solution from the samelot or batch for the test to be accurate.

The reaction of alcohol in the breath sample with the solution contained in the testampule causes the solution to change color from yellow to green. This color change causes achange in the intensity of the light transmitted through the glass ampule. This change ismeasured by a photocell and recorded on a galvanometer (null meter) attached to the photocell. Change is indicated when the needle of the galvanometer is in an unbalanced, or “off center,”position. The needle is then returned to a balanced position when the meter is manually adjustedby the operator of the machine. This adjustment causes a change in the intensity of the lighttransmitted by the test ampule, which is then recorded by another photocell. The amount of thisadjustment is measured on a scale calibrated in terms of blood alcohol content. The figureindicated on the scale is the percentage of alcohol in the subject’s blood.

The intoxilyzer identifies and measures alcohol vapor by subjecting the captured breathsample to infrared radiation. The alcohol vapor in the breath sample absorbs the radiation inproportion to its concentration, and this absorption is then measured and expressed as apercentage of alcohol in the blood. Moseley v. State, 696 S.W.2d 934, 939-940 (Tex.App.--Dallas 1985, pet. ref.).

The gas chromatograph functions by measuring the amount of electricity produced by thealcohol molecules present in the subject’s breath sample. This is accomplished by injecting thesample into the machine in a gaseous state. The various molecules present in the sample are then


separated and carried through a flame ionization detector device. This device converts themolecules into electrically charged ions and a measurement is obtained of the amount ofelectrical charge created during the time the alcohol molecules were passing through the flame.

Sources of Error in Breath Tests

The state generally offers two witnesses to support the admission of the results of a breathtest. They are the machine operator who actually conducted the test and the chemist whoanalyzed the test results. Counsel should be prepared to cross-examine both witnesses regardingpossible sources of error in administering the test and interpreting the results. The amendment ofthe law to now define a blood alcohol reading of 0.08 or more as intoxication may have obviatedthe necessity of presenting two separate witnesses.

A breath test must not be given too soon after the alcohol was consumed or a false highreading will result, since there will be alcohol in the breath sample but not throughout thesubject’s blood stream. The Texas Department of Public Safety recommends that there be a15-minute waiting period between the arrest and obtaining the breath sample. Similarly, since abreath test machine operates on the principle of measuring alveolar air, a failure to obtain a deepbreath sample will produce a distorted reading. Thus, a sample obtained from a subject who iscapable of producing only shallow breaths is not acceptable for testing. Shallow breathing maybe due to hyperventilation from nervousness or excitement, or due to a chronic health problemsuch as bronchitis or emphysema.

Breathalyzer or intoxilyzer tests may also result in false high readings if there is foreignmatter in the subject's mouth at the time the sample is collected. This is because neither test isspecific solely to ethyl alcohol; the chemicals in the test ampules will react to other hydrocarbonsas well. Thus, if the subject has consumed any food or liquid, or has smoked or vomited, within15 to 20 minutes before the test is administered, the result may be inaccurate.

Formerly, the regulations required that the person to whom the test is to be administeredbe observed continuously during the 15-minute waiting period. State v. Melendes, 877 S.W.2d502, 503-504 (Tex. App.--San Antonio 1994, pet. ref.). However, the regulations now requireonly that the operator remain in the presence of the subject during the 15-minute period andexercise reasonable care that the subject does not place items in his or her mouth. Continuous,direct observation is no longer required by the regulations. Instead, the regulations now providethat two breath samples be taken two minutes apart to ensure the accuracy of the test. If there is adifference of alcohol concentration between the samples of anything greater than 0.020, the testis invalidated. One court has noted that this procedure obviates the necessity for continuousobservation, since an event during the 15-minute period that would cause an inaccuracy in thetest would invalidate the test by causing a discrepancy between the two samples of greater than0.020. State v. Reed, 888 S.W.2d 117, 122-123 (Tex. App.--San Antonio 1994, -- --).

There are several possible sources of error that may arise in the operation of the machine


itself. All machines must be regularly serviced and checked periodically for accuracy. Thefailure to perform such periodic maintenance casts doubt on the accuracy of the test results. Counsel should include in the pretrial discovery motion a request for the maintenance records ofthe machine used to test the defendant so that they can be inspected prior to trial for use duringcross-examination. Another source for cross-examination questions in this regard is theinstruction manual for the particular machine used in the test. The operator of each type ofmachine must also follow a specific procedure before administering the test in order to insure theaccuracy of the test results. This includes properly warming up the machine and insuring that theportion of the machine where the sample is to be analyzed has achieved the proper temperature.

The breathalyzer presents certain sources of error that should be considered for possibleexploration on cross-examination. The solution used in the test ampules must be properlycompounded or a false high reading may result. While it is the state’s burden to show this as apredicate to the admissibility of the test results, the mere fact that the state has met the burden ofadmissibility does not mean that successful impeachment may not affect the weight the juryaccords the test. Another potential source of error is the possibility that it contained less liquidthan required to provide an accurate reading. If the ampule is shaken before its neck is brokenfor insertion of the bubbler, some of the liquid may remain in the neck. Since the amount ofbreath being tested is so small, any reduction in the amount of liquid is significant. Also, if theclamp that holds the tube running from the sample chamber to the test ampule is loose, a largeramount of air than the recommended sample amount will be permitted to reach the ampule andthe resultant reading will be inaccurate.

Certain circumstances that may exist before the start of a breathalyzer test can affect theresults. For example, if the operator has not purged the machine of traces of alcohol from a priortest immediately before beginning the instant test, the results of the instant test will be inaccurate.One commentator has also suggested that performing the test in a small, unventilated room whereother tests have been given may mean that impure air has been flushed through the machine andthis may contribute to a false reading. The test results will also be inaccurate if the subjectshould happen to blow into the mouthpiece while the control knob is off, since this would sendair directly to the test ampule. The failure to rebalance the machine if this occurs destroys thevalidity of the test results. Additionally, if the machine is bumped or moved after it is balanced,the position of the bubbler, ampule, or blood alcohol indicator may be moved, and thuscontribute to an inaccurate reading.

Finally, there are several points that can always be brought out on cross-examination thatmay not technically be considered impeachment, but are admissions that may be used to thedefendant’s advantage. The sample that is measured by any breath testing device is extremelysmall, and the amount of alcohol vapor in that sample is even smaller. When the minuscule sizeof the sample is established, it may be easier to convince the jury of the likelihood ofcontamination or error. Most experts will also concede the variable nature of the 1:2100blood-alcohol ratio, and that it is not possible to say specifically that the ratio applies to thedefendant. This may be a significant point in a case in which the result was close to the 0.08


level. Finally, it takes the body from 30 minutes to two hours to fully absorb alcohol into thebloodstream and central nervous system. Thus, in a DWI case, it may be possible for a subject toregister a reading over the legal limit at the time of testing, yet legitimately assert that at the timeof operating the motor vehicle he or she would not have registered such a reading. Weaver v.State, 721 S.W.2d 495, 499 (Tex. App.--Houston [1st Dist.] 1986, pet. ref.).

It is reversible error to disallow testimony by a defense expert about matters such aspartition ratio and the possibility of radio frequency interference, which go to show theunreliability of the machine used to test the defendant. Fultz v. State, 770 S.W.2d 595, 597-598(Tex. App.--Houston [14th Dist.] 1989, pet. ref.).

Punishment

Please note that the range of punishment may change by legislation andthe information in this memorandum may not be up to date. Further,

specific factors in your case, including prior convictions, maymake a difference as to the range of punishment – especially the

minimum and maximum punishments – that may apply to your circumstances.

Offense Committed on or After September 1, 1994

The offense of driving while intoxicated is punished as a Class B misdemeanor, with aminimum term of confinement of 72 hours. Penal Code §49.04(b). The minimum term of confinement is raised to six days if it is shown at trial that at the time of the offense the persondriving or operating the motor vehicle had an open container of alcohol in his or her immediatepossession. Penal Code §49.04(c).

Enhanced penalties apply to this offense if a person has suffered a prior conviction fordriving, boating, or flying while intoxicated. If a person has one prior conviction for such anoffense, the punishment is raised to a Class A misdemeanor, with a minimum term ofconfinement of 30 days. Penal Code §49.09(a). The offense becomes a third-degree felony if theperson has two prior convictions. Penal Code §49.09(b). For purposes of applying theseenhanced penalties, convictions under prior versions of statutes prohibiting these offenses inTexas may be used, as may convictions under statutes from other states that prohibit the sameacts. Convictions for intoxication assault and intoxication manslaughter may also be used. PenalCode §49.09(c).

Further, a conviction for driving, flying, or boating while intoxicated, or for intoxicationmanslaughter or intoxication assault, that occurs on or after September 1, 1994, is a finalconviction for these purposes whether the sentence for the conviction is imposed or probated. Penal Code §49.09(d). However, a conviction may not be used for enhancement if theconviction was for an offense committed more than 10 years before the offense for which theperson is being tried was committed and the person has not been convicted of driving, flying, or


boating while intoxicated, intoxication manslaughter or assault, or any offense related to drivingor operating a motor vehicle while intoxicated, committed within 10 years before the date onwhich the offense for which the person is being tried was committed. Penal Code §49.09(e). Aconviction may be used for purposes of enhancement under this statute or enhancement underSubchapter D of Chapter 12 of the Penal Code, but not under both this statute and Subchapter D. Penal Code §49.09(f).

Penal Code §49.09(f) provides that “[a] conviction may be used for purposes ofenhancement under this section or enhancement under subchapter D, chapter 12 (Texas PenalCode, section 12.41 et seq.), but not under both this section and subchapter D.” Even since thestatute was modified, however, prior DWI convictions have been used for enhancement underboth statutory enhancement provisions so long as the prior offenses were not repeated. Thus, twoprior DWI convictions could be used to elevate the present offense to a felony under the DWIprovisions while another prior DWI was used to raise the potential penalty under the generalenhancement statute. Maibauer v. State, 968 S.W.2d 502, 505 (Tex. App.--Waco 1998, pet. ref.). This reading of the statute finds further support in the fact that the legislature significantly alteredthe felony DWI statute when it enacted the new Penal Code §49.09. Under the former statute,6701l-1(e) RCS, a person could be convicted of felony DWI if he had “previously been convictedtwo or more times of [DWI].” The Court of Criminal Appeals has construed identical languagein the felony theft statute to mean “a defendant’s prior theft convictions, regardless of theirnumber or degree, cannot serve to enhance the punishment for a subsequent theft of less than[$1,500] beyond that of a [state jail] felony.” In the felony theft statute, the prior theftconvictions operated as a special enhancement provision that controlled over the generalenhancement statutes.

Texas Penal Code section 49.09(b) now provides that a person can be convicted of felonyDWI if he “has previously been convicted two times of [DWI].” Because the legislatureeliminated the “two or more” previous convictions language, the felony DWI statute is no longerthe special enhancement statute it previously was, and, when read together with Penal Code§49.09(f), it does not control over the general enhancement provisions of Penal Code §12.42. Maibauer v. State, 968 S.W.2d 502, 505 (Tex. App.--Waco 1998, pet. ref).

The statutory provision allowing prior DWI convictions to be used for enhancementunder the DWI section of the code or enhancement under the general enhancement provisions butnot under both became effective on September 1, 1995, and was intended to apply only tooffenses that occurred on or after the effective date. Any offenses occurring before that date areto be adjudicated under the law governing at that time. Rivera v. State, 957 S.W.2d 636, 639(Tex.App.--Corpus Christi 1997, pet. filed). Relevant law prior to the date of Penal Code49.09(f) went into effect precluded the use of prior DWI convictions for enhancement under ageneral enhancement statute, because of the enhancement provisions unique to the DWI offense. Phifer v. State, 787 S.W.2d 395, 396 (Crim.App. 1990).

License Suspension


Administrative Suspension – Not Part of the “Punishment” for DWI, but an “Effect” of Offense

As briefly noted and discussed above regarding the ALR procedure administered by theDPS, a person’s driver’s license will be suspended after the person is arrested for driving whileintoxicated, or for intoxication assault or intoxication manslaughter involving the operation of amotor vehicle, if the person submits to the taking of a specimen of breath or blood and ananalysis shows the person had an alcohol concentration of 0.08 or more. Transportation Code§§524.011, 524.012; see Penal Code §49.01 -- alcohol concentration defined; Penal Code §49.04-- driving while intoxicated; Penal Code §49.07 -- intoxication assault; Penal Code §49.08 --intoxication manslaughter. This suspension may not be probated. Transportation Code§524.021(b).

This suspension takes effect on the 40th day after the date the person receives actual orpresumed notice of the suspension. Transportation Code §542.021. The arresting officer willserve the notice personally at the time of arrest or, if the results of the test are not immediatelyavailable, will attempt personal service later. If the officer does not personally serve the notice,the Department of Public Safety will determine whether to suspend the person’s license based onthe officer’s report and if the department determines that the person had an unlawful alcohol concentration while operating a motor vehicle in a public place, the department will send theperson notice of suspension by certified mail. (Most of the time, the “notice of suspension” isdelivered to the defendant at the time of the breath test, assuming the breath test showed a bloodalcohol level in excess of .08.) If sent by mail, the notice is considered received on the fifth dayafter mailing. The notice must state (1) the reason and statutory grounds for the suspension; (2) the effective date of the suspension; (3) the right of the person to a hearing; (4) how to request ahearing; and (5) the period in which the person must request a hearing.

If the department determines not to suspend the person's driver’s license, the departmentmust notify the person of that determination and rescind any notice of driver’s license suspensionserved on the person.

The period of suspension is 60, 120, or 180 days, depending on the person’s drivingrecord during the five years immediately preceding the arrest. The suspension is 60 days if thereare no recorded alcohol-related or drug-related enforcement contacts during that period and thesuspension is 120 days if the driving record reveals one or more alcohol-related or drug-relatedenforcement contacts not involving convictions. In this context, an alcohol-related ordrug-related enforcement contact is a driver’s license suspension, disqualification, or prohibitionorder under the laws of Texas or another state after a person arrested for driving whileintoxicated either has refused to submit to a blood or breath test or has submitted to a blood orbreath test revealing an unlawful alcohol concentration. Transportation Code, §524.022(2).

The suspension lasts 180 days if the record shows one or more driver’s licensesuspension, disqualification, or prohibition orders made under the laws of Texas or another stateafter the person was convicted of driving while intoxicated under the influence of alcohol or a


controlled substance. Transportation Code §524.022(3); §524.001(2)(A).

The person is entitled to an administrative hearing if the person requests one and therequest, in writing, including a facsimile transmission, is received by the Department of PublicSafety at its Austin headquarters no later than the 15th day after actual or presumed receipt of notice.

The person’s license may not be suspended under this statute if the person is acquitted ofa criminal charge arising from the occurrence that was the basis for the suspension. If asuspension was imposed before the acquittal, the department must rescind the suspension andremove any reference to the suspension from the person’s computerized driving record. On theother hand, if a person is convicted of driving while intoxicated, intoxication assault, orintoxication manslaughter, and the same conduct is a ground for suspension under this statuteand under Transportation Code Chapter 521, Subchapter O, or Chapter 522, Subchapter H, eachof the suspensions may be imposed. Nevertheless, unless the person has a prior conviction ofone of these offenses, the court must credit the administrative suspension against the suspensionimposed on conviction of the offense. Transportation Code §524.023; § 521.341 et seq.

A driver’s license suspended under this statute may not be reinstated and no new driver’slicense may be issued to the person until the person pays the Department of Public Safety a fee of$100 in addition to any other fee required by law. The payment of a reinstatement fee is notrequired if a suspension is rescinded by the department or not sustained by an administrative lawjudge or a court.

An optional suspension of up to one year may be imposed on a person under 21 years ofage who is arrested or taken into custody for driving while intoxicated, intoxication assault, orintoxication manslaughter and submits to a breath or blood test that shows an alcoholconcentration of 0.07 or more but less than 0.10.

License Suspension on Conviction

In addition to the penalties otherwise imposed on conviction for driving whileintoxicated, and in addition to the ALR procedure, the defendant’s driver’s license isautomatically suspended on final conviction of the offense when it is committed as a result ofintroduction of alcohol into the body. This suspension also applies on final conviction ofintoxication assault committed as a result of the introduction of alcohol into the body,intoxication manslaughter, an offense punishable as a felony under Texas motor vehicle laws,failure to stop and render aid, and certain other offenses. Transportation Code §521.341; TexasDept. of Public Safety v. Tull, 657 S.W.2d 508, 508 (Civ. App.--Corpus Christi 1983, no writ). When the conviction is for driving while intoxicated, intoxication assault, or intoxicationmanslaughter, the suspension begins on a date set by the court that is not earlier than the date ofthe conviction or later than the 30th day after the date of the conviction. Transportation Code§521.344(a)(1). Otherwise, the period of suspension automatically begins when the conviction


becomes final, which is normally on the 30th day after the date of conviction (or plea of guilty).

The suspension period for driving while intoxicated and intoxication assault depends onthe prior record of the defendant. The license of a person convicted of driving while intoxicatedor intoxication assault must be suspended for a period determined by the court that is between90 days and one year if the defendant had no prior DWI convictions. The court must select aperiod between 180 days and two years if the defendant had one or more prior DWI convictions. Transportation Code §521.344(a)(2). If a person is convicted of intoxication manslaughter, thesuspension period may be not less than 180 days or more than two years. Transportation Code§521.344(b).

For most other offenses under the statute, the defendant’s first suspension is for a periodof one year. If the defendant’s license is subsequently suspended under this statute, thesuspension must generally last 18 months. Transportation Code §521.343. In applying thisprovision, whether a suspension is subsequent depends on the date of the offense, rather than thedate of conviction. Thus, even though convictions may be entered on the same day, convictionsfor offenses that occurred subsequent in time to the first offense result in subsequent suspensionsthat are 18 months in length. In the case decided in Thomas v. State, 705 S.W.2d 347, 348 (Tex.App.--Dallas 1986, no pet.), when defendant pleaded guilty to three DWIs on the same day, andall three suspensions were concurrent, but suspensions based on the second and third offenseswere 18 months long, which means that the total suspension was eighteen months (twelvemonths for the first one, eighteen months for the second, and eighteen months for the third).

A first offender is entitled to have the time that his or her license was suspended for arefusal to give a blood or breath specimen credited to any suspension following the convictionfor the same offense.

However, in the event of a “plea bargain” regarding your DWI charge, your licensemay not necessarily be suspended when you plead guilty. The automatic suspension is notimposed when a defendant convicted of DWI for the first time has been placed on probation andordered to undergo a rehabilitation program or when a jury has recommended that the license notbe suspended. This suspension is available to a judge, and some judges “automatically” suspenda defendant’s license and others do not. The issue of this suspension will be addressed at thetime the court enters punishment either after a trial or upon a plea of guilty.

The DPS also may not revoke the driver’s license of a defendant who has been placed onprobation when it has been required as a condition that the defendant not operate a motor vehicleunless it is equipped with a breath analysis device. In addition, the court may not add a licensesuspension as a condition of probation if the defendant has been ordered to undergo arehabilitation program. However, failure of the judge to suspend the defendant’s license does notdeprive the Department of Public Safety of the right to move for suspension. Burrows v. Dept.of Public Safety, 740 S.W.2d 19, 20 (Tex. App.--Dallas 1987, no writ).


If a defendant ordered to attend a rehabilitation program fails to complete that programwithin the allotted time, a suspension must be imposed. The suspension is continued until theperson successfully completes the program. If the department seeks to impose a suspension onfailure of a defendant to complete a rehabilitation program, the defendant has the right to ahearing on the issues of successful completion and lapse of allotted time. Transportation Code§521.344(e)-(h).

A suspension may be imposed even if the defendant does not have a valid driver’slicense. Hernandez v. State, 842 S.W.2d 294, 296 (Crim. App. 1992). In such cases, a personconvicted of DWI is prohibited from obtaining a license until the end of the suspension period. Transportation Code §521.344(e), (f), (g). As a result, a defendant is entitled to ask the jury torecommend that there be no suspension even if there has been no showing that the defendant hasa valid driver’s license. Hernandez v. State, 842 S.W.2d 294, 296 (Crim. App. 1992).

Vehicle Forfeiture

A motor vehicle is subject to forfeiture if the vehicle is owned and operated at the time ofa driving while intoxicated offense, or an intoxication assault or intoxication manslaughteroffense involving the operation of a motor vehicle, by a person who has previously been finally convicted three or more times of driving while intoxicated, intoxication assault involving a motorvehicle, intoxication manslaughter, criminally negligent homicide, former versions of theseoffenses, or any combination of these. Vehicle forfeiture is normally NOT an option soughtby the prosecutors in Harris County for DWI defendants, unless there are circumstances inaddition to the “plain vanilla” DWI offense.

The vehicle is also subject to forfeiture if the person was under community supervisionfor intoxication manslaughter or the former version of this offense at the time of arrest. Transportation Code §704.001(a). If the person is convicted at the trial for the offense for whichthe person was arrested, the court sentencing the person may forfeit the vehicle on the motion ofthe district or county attorney after notice and hearing and on a showing that a court hasdetermined that the vehicle is subject to forfeiture. Transportation Code §704.003. Theprocedures for forfeiture are set out by statute. Transportation Code §704.001 et seq.

Confinement

There are mandatory terms of incarceration that must be imposed as a condition ofcommunity supervision if the defendant has been convicted of an intoxication offense underChapter 49 of the Penal Code. The mandatory terms are as follows:

1. Not less than three days of confinement in county jail if the defendant was previouslyconvicted of driving, flying, or boating while intoxicated.

2. Not less than 10 days of confinement in county jail if the defendant was convicted


twice previously of driving, flying, or boating while intoxicated. State v. Lucero, 979S.W.2d 400, 401 (Tex. App.--Amarillo 1998, no writ).

3. Not less than 30 days of confinement in county jail if defendant was convicted ofcausing serious bodily injury due to the operation of a motor vehicle, aircraft, orwatercraft in a public place while intoxicated.

4. Not less than 120 days of continuous confinement if the defendant was convicted ofcausing the death of another due to being intoxicated while operating a motor vehicle,aircraft, or watercraft. Code of Criminal Procedure Art. 42.12 § 13(b).

If the court instructs the jury on community supervision in a case involving a death, itshould also instruct them on the mandatory confinement period. Heathington v. State, 705S.W.2d 326, 329 (Tex. App.--Amarillo 1986, no pet.).

Although the statute only provides for a minimum 120 days confinement, with nomaximum, an order of confinement for any period longer than 120 days must meet areasonableness standard. Hypke v. State, 720 S.W.2d 158, 160 (Tex. App.--Houston [14th Dist.]1986, pet. ref.).

Mandatory Evaluation

If the court grants community supervision to a defendant who has been convicted of (1)operating a motor vehicle, aircraft, or watercraft while intoxicated, or (2) causing death or seriousbodily injury while operating a motor vehicle, aircraft, or watercraft while intoxicated, and thedefendant has not submitted to a pre-sentence evaluation by a supervision officer to determinethe appropriateness of alcohol or drug rehabilitation, the judge must require the defendant tosubmit to this evaluation as a condition of community supervision. If the evaluation indicates thatthe defendant is in need of treatment for drug or alcohol dependency, the judge must require thedefendant to submit to that treatment as a condition of community supervision. The treatmentmust be in a program or facility approved or licensed by the Texas Commission on Alcohol andDrug Abuse or in a program or facility that complies with standards established by theCommunity Justice Assistance Division of the Texas Department of Criminal Justice, afterconsultation by the Division with the Commission. Code of Criminal Procedure Art. 42.12§13(f).

This requirement of evaluation for drug or alcohol rehabilitation is satisfied if thedefendant is evaluated by a supervision officer or an employee of an approved rehabilitationfacility. The goal of the evaluation is for the facility to prescribe and carry out a course oftreatment that will rehabilitate the defendant from drug or alcohol dependence. Code of CriminalProcedure Art. 42.12 § 13(a)(2).

Educational Programs


If the defendant is convicted of operating a motor vehicle, aircraft, or watercraft whileintoxicated or is convicted of causing death or serious bodily injury while operating a motorvehicle and the defendant is then placed on community supervision, the court must require, as acondition of community supervision, that the defendant attend and successfully complete aneducational program on alcohol abuse prior to the 181st day after the day communitysupervision is granted. The program must be designed to rehabilitate persons who drive whileintoxicated, and it must be jointly approved by the Texas Commission on Alcohol and DrugAbuse, the Texas Department of Public Safety, the Traffic Safety Section of the TexasDepartment of Transportation, and the Community Justice Assistance Division of the TexasDepartment of Criminal Justice. Code of Criminal Procedure Art. 42.12 § 13(h).

The court may waive this requirement if the defendant files a sworn, written motionshowing good cause for a waiver. Code of Criminal Procedure Art. 42.12 § 13(h). Indetermining good cause, the judge may consider matters such as the following: (1) thedefendant’s school and work schedule; (2) the defendant’s health; (3) the distance that thedefendant must travel to attend an educational program; and (4) the fact that the defendantresides out of state, has no valid driver’s license, or does not have access to transportation. Codeof Criminal Procedure Art. 42.12 §13(h).

If a defendant is punished as a repeat offender for operating a motor vehicle, aircraft, orwatercraft while intoxicated, a judge must require as a condition of community supervision thatthe defendant attend and successfully complete an educational program for repeat offendersapproved by the Texas Commission on Alcohol and Drug Abuse. A judge may waive thisrequirement only if the defendant files a written motion showing good cause. In determininggood cause, the judge may consider circumstances including, but not limited to, the following:(1) the defendant’s school and work schedule; (2) the defendant’s health; (3) the distance that thedefendant must travel to attend an educational program; and (4) the fact that the defendantresides out of state, has no valid driver’s license, or does not have access to transportation. Code ofCriminal Procedure Art. 42.12 §13(j).

Additional Discussion of License Suspension

The governing statute is unclear, but apparently a judge must order a DWI defendant’sdriver’s license to be suspended as a condition of community supervision regardless of whetherthe defendant is a first-time or a repeat-offender. Code of Criminal Procedure Art. 42.12 §13(k). This is the source of “confusion” in most courts, and the reason some judges impose a“mandatory” suspension and some do not. If the defendant is a first-time offender, thesuspension may not be less than 90 days or more than 365 days. Code of Criminal ProcedureArt. 42.12 § 13(k). If the defendant is a repeat offender, the suspension must be for not less than180 days or more than two years. Code of Criminal Procedure Art. 42.12 §13(k).

In a case involving a repeat-DWI offender, if the court does not order that the defendant’s


driver’s license be suspended, the Department of Public Safety must suspend the defendant’slicense or issue an order prohibiting the defendant from obtaining a license for 365 days. Codeof Criminal Procedure. Art. 42.12 §13(l).

Payment of Rehabilitation Program Costs

If a judge requires that a defendant participate in a rehabilitation program to help correctthe defendant's drug or alcohol dependence, the defendant must pay for all or a part of the cost ofthe program, depending on the defendant’s ability to do so. Chauncey v. State, 837 S.W.2d 179,184 (Tex. App.--El Paso 1992), aff'd, 877 S.W.2d 305 (Crim. App. 1994). However, the judgehas the power to credit the cost against the assessed fine. Code of Criminal Procedure Art. 42.12§13(d).

Failure to Successfully Complete Rehabilitation Program

The director of a rehabilitation program in which a defendant is enrolled has theobligation to inform the judge if the defendant is not making a good faith effort to participate inthe rehabilitation program. Code of Criminal Procedure Art. 42.12 §13(c).

The failure to successfully complete an education program within the required periodresults in the suspension of the person’s driver’s license. However, the requirement that thedefendant’s license be suspended if he or she does not successfully complete an educationalprogram does not apply if the jury has recommended that the defendant’s driver’s license not besuspended. Code of Criminal Procedure Art. 42.12 §13(h).

Vehicle Modification

A defendant convicted of an offense under Penal Code Sections 49.04 through 49.08 maybe required as a condition of community supervision to have a device installed on the motorvehicle owned by the defendant, or on the vehicle most regularly driven by the defendant, thatuses a deep-lung breath analysis mechanism to make impractical the operation of the motorvehicle if ethyl alcohol is detected in the breath of the operator. It may also be ordered that thedefendant not operate any motor vehicle that is not equipped with that device. If the person isconvicted of an offense under Penal Code Section 49.04, 49.05, or 49.06, and is punished underPenal Code Section 49.09(a) or (b), or is convicted of a second or subsequent offense underPenal Code Section 49.07 or 49.08, the court “shall require the defendant to obtain the device atthe defendant’s own cost before the 30th day after the date of conviction unless the court findsthat to do so would not be in the best interests of justice and enters its findings on the record.” Code of Criminal Procedure Art. 42.12, section 13(i). However, one Court of Appeals hasinterpreted this mandatory language to mean that a trial court has discretion whether to impose


the condition but, if the court requires installation the court has no discretion about the timing ofthe required installation or that the defendant sustain the cost. State v. Lucero, 979 S.W.2d 400,401-402 (Tex. App.--Amarillo 1998, no writ).

Before placing a defendant on community supervision after conviction for an offenseunder Penal Code Sections 49.04 through 49.08, the court must determine from criminal historyrecord information maintained by the Department of Public Safety whether the defendant has oneor more previous convictions under those sections, or has one previous conviction under PenalCode Sections 49.04 through 49.07, or one previous conviction under Penal Code Section 49.08. If the court determines the defendant has one or more such previous convictions, the court mustrequire installation of the device on the motor vehicle owned by the defendant or on the vehiclemost regularly driven by the defendant and that the defendant not operate any motor vehicleunless the vehicle is equipped with the device. Code of Criminal Procedure Art. 42.12 §13(i).

The defendant must obtain the device at the defendant’s own cost before the 30th dayafter the date of conviction, unless the court finds that to do so would not be in the best interestof justice and enters its findings on the record. The court must require the defendant to provideevidence to the court within the 30-day period that the device has been installed on theappropriate vehicle, and the court must order the device to remain installed on that vehicle for aperiod not less than 50 percent of the supervision period. If the court determines the offender isunable to pay for the device, the court may impose a reasonable payment schedule not to exceedtwice the period of the court’s order. Code of Criminal Procedure Art. 42.12 §13(i).

If a defendant is required to operate a motor vehicle in the course and scope of thedefendant's employment and the vehicle is owned by the employer, the defendant may operatethat vehicle without installation of an approved ignition interlock device if the employer has beennotified of the driving restriction and proof of the notification is with the vehicle. However, ifthe business entity that owns the vehicle is owned or controlled by the defendant whose drivingprivilege has been restricted, the court may order that the defendant not operate the vehiclewithout installation of an approved ignition interlock device. Code of Criminal Procedure Art.42.12 §13(i).

You should also review the related hand-out describing the DPS “Points System” andlicense surcharges instituted under the “Driver Responsibility Program.” A DWI conviction,even if probated, can and will have serious – and potentially expensive – consequences for yourability to drive and hold a Texas Driver’s License.

Please give us a call if you have questions about driving while intoxicated. We’d behappy to help any way we can.

This Memorandum was prepared by Charles B. Frye, Attorney at Law, Lindeman,Alvarado & Frye, Houston, Texas. It is not billed separately to the client to whom it was


presented and no charge for time will appear on the client’s statement for legal services. The Memorandum is intended to assist the client in understanding some basic legalissues about the question presented and to help the client understand when legal servicesmay be needed. This Memorandum is not intended as legal advice pertaining to anyspecific situation the client may have. Please note the date of the preparation of theMemorandum and be advised that the law -- both statutes passed by the legislature andcases decided by appellate courts -- changes from time to time and those changes mayaffect the statements contained herein. Each legal problem is unique because of its’ facts– always seek legal advice from a competent attorney when confronted by a legalquestion so that the facts may be appropriately applied to the law. Should you have anyquestions or need assistance, please feel free to call Mr. Frye or Mr. Lindeman at (713)236-8700.

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