Fall 2021

Announcing the DWI Resource Course!

Going virtual has its benefits! We have compiled the recorded DWI sessions from the past year into one course that you can easily navigate. The videos are separated into general DWI issues and videos specific to DWI Courts. The General DWI videos come from sessions that were presented at the 2020 Online Course, 2020 Annual, 2021 Criminal Justice, and 2021 Regional Conference with four additional topics that were recorded especially for the DWI Resource Course – DWI Case Law Update, Non-disclosures, After the Conviction, and Occupational Licenses. The DWI Court Videos were recorded at the 2021 Virtual DWI Court Team Basic Training and Advanced Conference.

The full list of videos currently available is below. We also welcome your input, if you have a topic that you don't see but would like to see covered, please email hollyd@yourhonor.com.

Register for the course here or from the TCJ homepage at www.yourhonor.com. The DWI Resource Course is hosted on Brightspace, TCJ's online conference platform. After you register you will need to login to your judicial profile to access your online conferences. Full instructions can be found here.  If you have questions or problems, please email hollyd@yourhonor.com.

General DWI Videos

DWI Legislative and Case Law Update - September 2021
Occupational Driver's Licenses - July 2021
Non-Disclosures: The Ripple
After the Conviction
The What, When and Why of Alcohol Monitoring Devices
An Expert Approach to Forensic Alcohol Testimony
Drug Impaired Driving: Where Do We Stand?
Current Issues in Motions to Suppress DWI Edition
All Things Jury: DWI Edition
Back to Basics

DWI Court Basic Training Videos

DWI Courts; The Promise and Practice
Addiction and the Brain
Screening & Assessment
Supervising Offenders: Community Supervision
Drug Testing
Behavior Change 101: How to Motivate Lasting Change
What the Team Brings: Best Practices for Staffing and Court Review
DWI Court Viewing & Discussion
Hitting Your Target/What's Your Mission?
Lingo to Learn
Limitations and Liabilities
DWI Court Advanced Conference Videos

The Complicated Relationship Between PTSD and Substance Abuse
Self-Care: Ways to Cope with Stress, Anxiety and Isolation
How to Deal with "Legal" Substances
Co-Occurring Disorders within Treatment Court
Reducing Justice-Involvement Among Individual with Co-Occurring Disorders: HHSC Services and Programs
When Sanctions (and Incentives) Don't Work: Responding Effectively to Addiction-Driven Non-Compliance
Equity & Inclusion in Treatment Courts

Mark Your Calendars!

DWI Court Team Basic Training & Advanced Conference
February 28 - March 4, 2022
Registration will open in early January.

You must have login credentials to access the website and to register. To obtain credentials, contact Aaron: registrar@yourhonor.com

2021 Impaired Driving Legislative and Case Law Update
By Judge Laura A. Weiser, Judicial Resource Liaison

A total of 6927 bills and resolutions were filed in the 87th Regular Session. 1073 total bills and resolutions were passed and 21 were vetoed by the governor. Over 600 new laws became effective September 1, 2021. No bills were passed in the first special session and SB 1 was passed in the second special session. There is one more special session scheduled to begin on September 20, 2021. There is nothing in the call for the 3rd special session that would impact impaired driving laws. All in all, it was a quiet session for impaired driving laws.

Probably the most celebrated bill that will indirectly impact impaired driving was HB 1024 by Geren was effective 5/12/21. This bill allows “alcohol to go” by allowing the pickup and delivery of appropriately; sealed alcoholic beverages for off-premises consumption as part of the pickup or delivery of food prepared at the permitted premises.

There were several bills concerning blood search warrants: HB 558 by White was effective 9/1/21. This bill amends Section 724.012 of the Texas Transportation Code to require a peace officer to take a specimen of a person’s blood if:

1. They are arrested for a Chapter 49 offense;
2. They refuse to submit to a test; and
3. They were involved in an accident and the officer believes that as a direct result of the accident any individual has dies, will die or has suffered serious bodily injury.

The test can’t happen unless the officer gets a warrant or has probable cause to believe that exigent circumstances exist.

SB 335 by Johnson was effective 9/1/21
This bill amends Article 38.50 of the Code of Criminal Procedure and requires that the entity or individual who collects toxicological evidence to notify the individual from whom the evidence is collected of the applicable retention period. If the records of the court show that the person was not given the required notice, the court is required to give said notice.

A prosecutor’s office may require that the entity or individual charged with storing the toxicological evidence seek written approval from the prosecutor before destroying that evidence.

This bill also requires some additions to the statutory warnings required by TTC 724.015. Those additions are:
If a person submits to the taking of a blood specimen, that specimen will be retained and preserved in accordance with Art. 38.50 of the CCP and

The person will be requested to sign a statement that the person voluntarily consented to the taking of a specimen.

Lastly, in the area of blood search warrants, SB 1047 by Seliger provides some much needed relief to many rural counties. This bill allows a blood search warrant to be executed in any county adjacent to the county in which the warrant was issued and by any law enforcement officer authorized to make an arrest in the county of execution. This bill was effective 9/1/21

There were many bills filed regarding cannabis but most did not get out of committee. HB 1535 by Klick effective 9/1/21 expands the patient eligibility for low-THC cannabis prescriptions and includes PTSD to the diagnoses eligible for a cannabis prescription. It also increases the allowable percentage of THC from 0.5 to 1%

SB 181 by Johnson makes some changes the mandatory license suspension for a drug offense. The effective dates differ depending on the section. The Court is not required to suspend a license unless the drug offense is a felony level offense or a misdemeanor offense with a previous conviction within 36 months of the current offense.

If the license is not suspended for a misdemeanor drug offense, a fine of $100 is assessed.

Following are some of the cases involving impaired driving issues that have come through the appellate courts in 2021.

Fourth Amendment Issues:

State v. Adrian, 09-20-0041-CR decided on 2/3/21 No PDR found that the officer had sufficient reasonable suspicion to stop a truck and investigate for suspected DWI when a 911 caller called twice to report a truck traveling on a specific stretch of highway whose driver seemed “possible intoxicated” and almost hit a guardrail. The caller pulled over at the scene and confirmed that the stopped truck was the one that the caller had reported. The 911 caller did not testify at trial.

The question of whether an officer has reasonable suspicion to stop a driver for “Failure to Maintain a Single Lane” if a driver crosses a clearly marked lane but does not do so when other vehicles are present is still up in the air.

There are several cases in which PDRs have been filed:

Duger v. State, PDR filed 6/8/21 PD-0311-21

State v. Meras PDR filed 3/10/20 PD-0120-20

State v. Hardin, PD-0799-19 PDR granted 10/2/19 case submitted 2/26/20

Johnson v. State, PD-0561-20 5/12/21 resulted from an investigative detention at a park and ride after midnight. The Court of Criminal Appeals reiterated that reasonable suspicion does not require negating the possibility of an innocent explanation. The officer was confronted with unusual circumstances that from an objective standpoint, gave rise to reason to believe that something criminal had occurred, was occurring or was about to occur.

Yoda v. State, 11-10-00191-CR 5/6/21 PDR Ref’d 7/2821 Found that there were specific and articulable facts for an objective officer to form reasonable suspicion that the suspect was speeding in the officer’s presence even though radar was not used.

Lange v. California, No. 20-18 decided by the US Supreme Court on 6/23/21 found that the flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances to determine whether there are exigent circumstances that would allow the officer to enter.

Blood search warrant questions continue to be presented to trial courts and appellate courts.

Several appellate courts have found that the three day return requirement of Article 18 of the Code of Criminal Procedure does not require that the blood seized be tested within three days. Those cases are:

Ramirez v. State, 14-19-00433-CR 10/27/20 PDR ref’d

Schneider v. State, 03-19-00732-CR 3/10/21 PDR ref’d 8/25/21 PD-0238-21

State v. Mendez, 05-20-00307-CR 3/23/21 no PDR

There are several jurisdictions who are dealing with law enforcement agencies that have not been swearing their affiants in for search warrant probable cause affidavits.

Wheeler v. State, PD-0388-19 2/10/21 dealt with this issue. The Court of Criminal Appeals held that the officer was objectively unreasonable in executing a search warrant he knew was unsupported by a sworn probable cause affidavit, such that he cannot be said to have acted in objective good-faith reliance upon the warrant.

Another Article 18 case deals with the failure to make a timely return of an executed search warrant.

State v. Patel, 05-20-00129-CR 7/2/21 held that by its plain terms, Article 18.10 provides that a failure to make a timely return or submit an inventory does not bar admission of evidence seized pursuant to the search warrant.

There were several opinions issued this year that deal with the element of “operating” in a DWI case.

Wilkins v. State, 02-19-00324-CR 1/28/21 No PDR The 2nd COA held the Court may examine both direct and circumstantial evidence in the same manner, reasonable inferences are not to be disregarded when they can be drawn from circumstantial evidence. The Court found the evidence to be sufficient to support the trial court’s finding that Wilkins operated the vehicle. Wilkins was found asleep in the driver’s seat of a vehicle with the engine running that was parked in a busy lane of highway traffic. Both Wilkins and his passenger were buckled into their seats, and Wilkins had an open can of beer sitting between his legs.

Harrell v. State, PD-0985-19 5/21/21 considered the question of sufficiency of the evidence to show “operating” and held the evidence was sufficient for a jury to find the element of “operating” because “Not only did Appellant confess that he had been driving the same minivan identified by the 911 caller on the highway but also Appellant was found in the driver’s seat with the seatbelt buckled, and the first passenger told Officer Blair that Appellant was “supposed to be the sober one”… And finally, the 2nd Court of Appeals considered whether an ATV was a motor vehicle and held in Flores-Garnica v. State, 02-20-00016-CR 5/13/21 that: “The evidence, including the videos, demonstrates that the ATV could transport a person and property on a highway and that it was not exclusively used on stationary rails or tracks. Specifically, the evidence shows that Flores-Garnica drove the ATV to the store for beer and then drove it to the mobile home park on roads. We therefore hold the evidence sufficient to support the jury’s finding that the ATV was a motor vehicle.”

Have Gavel, Will Travel (virtually or in-person)!
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.

Judicial Excellence in Education Award - Judge Diane Bull
The Texas Center for the Judiciary's Judicial Excellence in Education Award is reserved for someone who not only teaches but makes significant contributions behind the scenes, which often lacks recognition. Judge Bull has been a generous contributor of her time, energy and expertise to the TxDOT Traffic Safety Program over the years and we're very pleased that she has been recognized with this award. Judge Bull's biography can be found below.

Judge Diane Bull is an award-winning retired judge from Houston, Texas. Judge Bull’s 36-year career in criminal justice includes experience as a prosecutor, a defense attorney and judge, with 24 years on the criminal bench. In the last 10 years of her tenure on the bench, she co-founded and presided over the Harris County SOBER DWI Court program. Judge Bull continues to sit as a visiting judge in Texas and is a frequent speaker for a number of national agencies and organizations, on a variety of topics related to evidence-based practices, treatment courts, impaired driving and traffic safety.

Contact Us
If you have suggestions for items to be included, or have an accomplishment or award that you would like to share, please contact:

Judge Laura A. Weiser
Judicial Resource Liaison

Holly Doran
TxDOT Program Director

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.