Fall 2020

Report from the Traffic Safety Grant Program

As the FY 2020 grant year comes to a close we reflect on the activities of the past so we can learn how to better serve you in the future. As each of you is aware this year has brought many changes, from how you run your courtrooms to how the Traffic Safety Grant Program provided impaired driving education. We are proud that we were able to continue to offer programs online and we appreciate your willingness to adapt to the changes as we moved from in-person events to the virtual world.

The new grant year will, no doubt, bring more challenges. We plan to continue to offer education that is relevant and timely in whatever form that may take. We will do our best to communicate decisions about upcoming conferences as they are made. And, as always, we welcome input for new and different projects which would help you handle impaired driving cases, especially as we all navigate our new normal.

Crider v. State Decision from the Court of Criminal Appeals

The Court of Criminal Appeals affirmed the trial and appellate decisions in Crider v. State PD-1070-19.  The Court found that a search warrant for blood does not have to expressly include authority to test the sample.  The Court held that the chemical testing of the blood, based upon a warrant that justifies the extraction of blood for that very purpose, is a reasonable search for Fourth Amendment purposes even if the warrant itself did not expressly authorize the chemical testing on its face.  You can read the opinion here.


Ten Cases Related to DWI Between March 2019 and May 2020 That May or May Not Interest You
By Hon. David Newell
(originally published in the Summer 2020 In Chambers)

As I write this, I kind of feel like Steve Martin in the movie The Jerk explaining what a patron might win at the guess-your-weight booth. Normally, I cover terms of the Court of Criminal Appeals when doing case law updates, but here, I am really pulling highlights from a paper I wrote in anticipation of presenting the DWI Case Law Update at the Center for the Judiciary's Regional Conferences. So, I have this unique span of time that I am covering for you. Courtney at the Center assures me that this is totally fine, as this is really intended as an amuse bouche for your own personal legal research. I make no guarantees that any of these cases will be the ones you want me to highlight or even that they might amuse you. I can only promise that I will try to make the summaries bite-sized. If you have ever eaten any of my cooking, you know to ingest at your own peril.

10. Don't ask the United States Supreme Court if implied-consent laws authorize the warrantless seizure of blood from an intoxicated and unconscious driver. Stop me if you've heard this one before. In case you haven't, the United States Supreme Court granted review on that very question but ended up not answering it. In Mitchell v. Wisconsin, 139 S.Ct. 2525 (June 27, 2019), the Court recognized, albeit in a plurality, that while there is no per se exigency in the metabolization of alcohol into the bloodstream justifying the warrantless seizure of an intoxicated driver's blood, an unconscious and intoxicated driver could present a medical emergency. That medical emergency, in addition to the dissipation of the alcohol in the unconscious driver's blood stream and the inability to obtain a breath sample, combine to create exigent circumstances to seize and analyze the blood. One of the swing votes in this case was Justice Thomas, who has always believed that probable cause to believe a driver is intoxicated along with the dissipation of alcohol amounts to exigent circumstances justifying a warrantless search and seizure. So, he agreed with the plurality on the issue of exigency. Three dissenters noted that the State had actually conceded that the seizure was not justified under a theory of exigent circumstances. And Justice Gorsuch dissented simply to observe that the Court was supposed to address the issue of implied consent, not exigency. But, if you are looking for closure, the Texas Court of Criminal Appeals later held in State v. Ruiz, 581 S.W.3d 782 (Tex. Crim. App. Sept. 11, 2019) that the implied-consent statute did not authorize the warrantless search and seizure of blood from an unconscious and intoxicated driver. There is obviously a lot more to these cases than this summary, so I commend them both to your reading.

9. A police officer has reasonable suspicion to stop a truck if he runs the license plate and finds the registered owner has a revoked driver's license. If you read my other article "10 Things We Learned About Criminal Law This Term" then this case may already be familiar to you. In case you haven't, I will reproduce what I wrote about this case in that article for you here. In Kansas v. Glover, 140 S. Ct. 1183 (Apr. 6, 2020), the United States Supreme Court considered a stop like the one described above. A Kansas deputy sheriff ran the license plate on a pick-up truck and found out that the registered owner had had his license revoked. The deputy pulled the truck over. The owner of the truck, Glover, turned out to also be the driver, but the deputy did not know that until after he had stopped the truck. Writing for the majority, Justice Thomas noted that "reasonable suspicion" does not require "scientific certainty" even if it requires more than a "hunch." The bottom line on this is that the Court looked at inferences from the facts at hand and whether it was reasonable for the officer to infer that the owner of the truck was the one driving it.

8. If you're driving drunk, do not throw a lit cigarette out of the window because that's reasonable suspicion to stop even if you don't start a fire. Michael Wood was driving while intoxicated and flicked a lit cigarette out of the driver's side window. In front of a police officer. The officer stopped Wood and later arrested Wood for DWI. Wood argued that Section 365.012 of the Health and Safety Code, which deals with littering, makes disposing of lighted liter, including a cigarette, an offense only if a fire is ignited as a result of the conduct. The trial court suppressed the evidence, but the Third Court of Appeals reversed. In State v. Wood, 575 S.W.3d 929 (Tex. App.—Austin May 23, 2019, pet. ref'd.), the court of appeals held that the officer's observation of an object being discarded was enough to provide reasonable suspicion. The court of appeals also noted that subsection 365.012(a) of the Health and Safety Code still allowed for punishment for littering even if the lighted trash doesn't start a fire, albeit for an offense with a lower punishment range.

To read the full article click here.

As we conclude the FY 20 grant year, the Traffic Safety Grant Program would like to thank the members of the DWI Curriculum Committee and all of the faculty who freely give of their time and energy to research and prepare to speak at our conferences. We would like to especially thank the judicial faculty who presented at this year's conferences: Senior Appellate Justice Marc Brown, Retired Judge Diane Bull, Judge Vikram "Vik" Deivanayagam, McClennan County Court at Law No. 1, Judge Mark Hocker, Lubbock County Court at Law No. 1, Judge David Newell, Court of Criminal Appeals, and Judge Tommy Stolhandske, Bexar County Court at Law No. 11.


Have Gavel, Will Travel (virtually)!

Do the judges in your courthouse or in your area have questions about impaired driving? Are you looking for an opportunity to bring together all the judges in your jurisdiction who handle impaired driving cases from bond to trial to supervision, especially now that you don't see them in the hallways? We know you can set up your own Zoom but let us do it instead! We will handle designing an impaired driving presentation that fits your needs, just give us a time and audience.


Resources

The new high-risk drunk driver modules and toolkit from Responsibility.org can be found here.

The National Association of Drug Court Professional's Spanish-language translation of the Adult Drug Court Best Practice Standards can be found here.

Watch it online!

Recordings of the following online courses are available:
Adapting to Uncertainty: Leveraging Technology and Nontraditional Approaches to Supervise Impaired Drivers

Impaired Driving Case Law Update and Back to Basics: Impaired Driving Edition

The DWI Summit topics included sentencing alternatives, occupational licenses and search warrants.


To access the full list of impaired driving conference papers, handouts and PowerPoint presentations simply log-in to your judicial profile on www.yourhonor.com and under the Resources tab choose Publications Library and then DWI as the category.


Contact Us
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 Laura A. Weiser
Judicial Resource Liaison
lweiser@yourhonor.com    

Holly Doran
TxDOT Program Director
hollyd@yourhonor.com


The DWI Listserv is open to all judges handling DWI cases. If you would like to be added to the Listserv please send an email to hollyd@yourhonor.com. We are continuously adding to the Texas Judges’ DWI Resource Website with news articles and upcoming educational opportunities.  We hope you find the  information in this Newsletter interesting and helpful. Please contact the Traffic Safety Program with any questions or comments.