DWI Newsletter

Significant Court of Criminal Appeals Case

The Court of Criminal Appeals recently rendered a unanimous opinion which will significantly affect the way DWI cases are charged by the prosecution and submitted to the jury. State v. Barbernell, ___ S.W.3d ___; 2008 WL 2596934 (Tex. Crim. App. 2008)(9:0)[PD-0867-07, 07/02/08].

FACTS: Defendant was charged with misdemeanor DWI. The indictment alleged only that the defendant was intoxicated, but did not allege the matter and means of intoxication. The trial court quashed the indictment because the State failed to allege the specific definition of “intoxicated” that it intended to prove. The Court of Appeals affirmed. After determining that its holding in Carter v. State, 810 S.W.2d 197 (Tex. Crim. App. 1991) evolved from a flawed analysis, the Court of Criminal Appeals (CCA) found that the definitions of “intoxicated” do not describe an act or omission.

The basis of the Court's holding is that the definitions of intoxication, as defined by the Penal Code, do not create two different manners and means of committing DWI; are evidentiary only; and need not be alleged in a charging instrument.

Therefore, all the State must allege and prove DWI conviction is that the defendant "is intoxicated while operating a motor vehicle in a public place."

It is obvious from prior case law that if the State goes further and alleges the how the offense was committed, the State will be required to prove those allegations. It is anticipated that the effect of this case will be to have the State re-plead all existing and future DWIs to allege only intoxication.

An additional result will be that when these cases are submitted to the jury, there will no longer be a need to submit an instruction about the synergistic effect of a combination of drugs and alcohol. We can assume that if the information or indictment only alleges simple intoxication, our charge to the jury will simply inquire whether a jury finds that the defendant was intoxicated, and will track the definition of intoxicated in the Penal Code.

Recent Research Indicates Interlocks Effective for First-Time Offenders

A study of more than 19,000 first-time drunk driving offenders found that interlocks that prevent the vehicle from starting if the driver has been drinking can dramatically reduce driving while intoxicated charges. The breath-testing devices reduced drunk driving charges by 60 percent compared to first-offenders who did not install the devices.

The study examined the records of 1,461 first time DWI offenders who had interlocks installed in their vehicles. The researchers compared them to 17,562 first offenders who did not use the devices. The two groups were matched up by age, gender, and blood alcohol concentration (BAC) at the time of arrest.

"We found that first-time offenders who had interlock devices were 60 percent less likely to have a repeat offense than those who did not use interlock devices," said Paul Marques, PhD, with the Pacific Institute for Research and Evaluation. "This study on first-time offenders reinforces prior studies on this issue that show a 65 percent reduction in drunk driving while interlocks are installed."

A bill has been pre-filed with the Texas Legislature that would require breath interlock devices for all first time DWI convictions. Although this bill has been filed in previous sessions in various forms, victim advocate groups have indicated that it will be their priority to seek passage of the legislation this session. There are currently five other states that require breath interlock devices for all first time offenders.

To read the entire article on this research, go to: http://www.eurekalert.org/pub_releases/2008-02/bc-ilr021108.php

News

DWI Judges Surveyed

For the past several years, the Texas Center for the Judiciary has received a grant from the Texas Department of Transportation (TxDOT) to help educate judges who hear DWI cases.

One of the goals during the first year of the TxDOT grant was to survey judges to determine how DWI cases are being handled across the State and inquire into the judges’ attitudes toward sentencing, sanctions, treatment, license suspensions and provisional licenses, and breath interlock devices. In 2006, the first survey was sent to 223 misdemeanor judges across the state, and their responses have been previously summarized and reported.

One of the goals of our current TxDOT grant is to resurvey judges to determine how DWI cases are being handled across the State, impaired driving concerns, and find out how to better meet their educational needs in relation to impaired driving cases, alcohol monitoring devices (interlock, SCRAM, etc.), occupational licenses, and intensive supervision dockets (DWI Courts). In 2008, surveys were sent to 376 Texas judges who hear criminal cases. The survey population was selected because there are 222 constitutional county courts in Texas that hear all civil, criminal, and original and appellate actions prescribed by law. In addition, the 445 Texas District courts have original jurisdiction in all felony criminal cases, juvenile matters, divorce cases, cases involving title to land, election contest cases, civil matters exceeding $200 or $500 in which the amount in controversy is greater than $200, and any matters in which jurisdiction is not placed in another trial court. Although there are 13 designated criminal district courts in Texas, 154 district court judges in the Texas Center judicial database were coded as hearing criminal and civil cases. Individual comments and responses to many of the questions are included in Appendix A, and all responses are summarized in this article.

2009 Training, Technical Assistance, and Resources

The Texas Center for the Judiciary has a grant from the Texas Department of Transportation to increase the effectiveness of DWI adjudications in Texas. By spanning the gap between traffic safety and the judiciary, the Texas Center and Judge David L. Hodges, Texas Judicial Resource Liaison, provide training, technical assistance, and support for Texas judges handling DWI and other traffic safety related cases.

DWI Judges Forum: The DWI Judges Forum is active and is a valuable source of information for judges who hear DWI cases. To become part of the forum, send an email request to Ann Blankenship.

DWI Website: http://www.yourhonor.com/dwi/dwihome.html
The purpose of this valuable website is to help Texas judges who handle these cases by providing legal resources, educational articles on pertinent subjects, a forms depository, and a convenient forum for Texas judges to exchange their ideas directly with each other.

This newsletter has been provided by the Texas Center for the Judiciary pursuant to a grant from TxDOT. If you have suggestions for items to be included in this Newsletter, or wish to be removed from the Newsletter mailing list, please contact:

Judge David L. Hodges
Judicial Resource Liaison
dhodges@yourhonor.com