DWI Newsletter

Fall 2015 Newsletter


by Judge Laura Weiser, Judicial Resource Liaison

Here are some recent cases from the Court of Criminal Appeals and courts of appeals around the state that impact impaired driving cases.

Implied Consent:

State v. Ruiz, No. 13-13-00507-CR.  Opinion Issued 8/27/15. Motion for en banc reconsideration filed 9/09/15. The 13th Court of Appeals affirmed the trial court’s suppression of blood alcohol test results. Following a collision in which witnesses identified appellee as one of the drivers, appellee was located in a field in the the area. Appellee was unresponsive with a strong odor of alcohol coming from his person.  After transportation to the hospital, appellee remained unresponsive.  The officer also learned that appellee had four prior convictions for driving while intoxicated. The officer completed paperwork for lab technicians to administer a blood draw. The State argued that the warrantless blood draw was permissible in accordance with Section 724.014 of the TTC (implied consent of an unconscious person) and because exigent circumstances existed.  Those circumstances being the officer’s testimony that it would have taken her three hours to obtain a warrant to draw defendant’s blood.

The Court of Appeals declined to hold that 724.011(a) and 724.014(a) of the Texas Transportation Code is the equivalent to voluntary consent as a recognized exception to the warrant requirements of the Fourth Amendment. The court, citing Beeman v. State, 86 S.W.3rd 613, 616 (Tex. Crim. App. 2002), held that the implied consent law framework does not give officers the ability to forcibly obtain blood samples from anyone arrested for driving while intoxicated, but instead gives officers the ability to present an affidavit to a magistrate in every DWI case just like every other criminal offense.

After examining the totality of the circumstances the Court held that the State produced no evidence to show that destruction of Ruiz’s blood alcohol was imminent, how it was deprived of an opportunity to obtain reliable evidence within a timeframe, or how a more expeditious process was not available to locate a magistrate and obtain a warrant from the magistrate through alternative means such as via telephone rather than physically driving to the magistrate’s home. Read the opinion here.

State v. Vincente Munoz No. 08-13-00164-CR. Opinion issued 7/31/15. Motion for rehearing denied 8/26/15.  The 8th Court of Appeals affirmed the trial court’s suppression of blood test results. Arresting officer received a suspicious vehicle dispatch.  The reporter observed a red pickup truck sitting in the street, with the engine off and the headlights on.  Arresting officer spoke with the reporter and then approached the pickup truck.  The officer discovered appellee asleep in the front seat with a can of beer between his legs, the keys in the ignition, the engine off and the headlights on.  After waking Appellee the officer smelled a strong odor of an alcoholic beverage and observed him to have unsteady balance, red bloodshot eyes and slurred speech.  Appellee refused to submit to a breath test. He was transported to the station nearby. After Appellee was placed in custody, the officer determined he had seven prior convictions for DWI.  He was immediately taken to the hospital for a mandatory blood draw under TTC 724.012(b)(3)(B).  The results of that draw were 0.23. (Note that this draw was done in 2009.) The arresting officer testified that she relied on the mandatory blood draw statute and did not attempt to get a warrant. The State contended that McNeely did not apply in states which had a legislatively mandated blood draws for repeat offenders such as Texas and that the results should not be excluded because the officer was acting in good-faith reliance upon the law.

The Court of Appeals cited the opinion in State v. Villarreal, No. PD-0306-14, (acknowledging that rehearing had been granted but noting that the Court of Criminal Appeals has not withdrawn its opinion on original submission) to overrule the State’s argument that McNeely did not apply.

The court also overruled the State’s argument that McNeely was not the law in 2009 and should not apply retroactively. The court cited Griffith v. Kentucky, 479 U.S. 314, 322, 107 S. Ct. 708 (1987) which held that a newly announced constitutional rule for conducting criminal prosecutions must be applied retroactively to all cases, state or federal, pending on direct review or not yet final when the rule was announced regardless whether they constitute a clear break from the past.  Read the opinion here.


Search and Seizure:

Jaganathan v. State No. PD-1189-14 Opinion Issued 9-16-15

Appellant passed a “Left Lane for Passing Only” sign and remained in the left lane without passing.  The arresting officer followed behind appellant for ten to twelve seconds. During this interval, the middle lane was clear of traffic and appellant was not passing any other vehicles. Appellant turned on her left turn signal, then turned it off and turned on her right turn signal, and then moved into the middle lane. The officer turned on his overhead lights, and the two vehicles pulled to the side of road. During the course of the stop, the officer smelled marijuana, searched appellant’s vehicle, and found marijuana in the trunk. As a result of this incident, appellant was charged with possession of marijuana. She filed a motion to suppress, which was denied. Pursuant to an agreement, she pled guilty and was placed on deferred adjudication.

On appeal, appellant claimed that the officer lacked reasonable suspicion to conduct a traffic stop.  After viewing the dashboard video, the 14th Court of Appeals agreed. The Court of Criminal Appeals, citing United States v. Arvizu, 534 U.S. 266, 277 (2002) and Illinois v. Wardlow, 528 U.S. 119, 125 (2000) in finding that a determination that reasonable suspicion exists need not rule out the possibility of innocent conduct and the reasonable suspicion standard accepts the risk that officers may stop innocent people.  The mere possibility that an act is justified will not negate reasonable suspicion. The Court of Criminal Appeals also found that it was improper for the appellate court to consider the purpose of the law in question. Read the opinion here.


Zuniga-Hernandez v. State No. 14-14-00346-CR. Opinion filed 8/18/15. No motion for rehearing filed. The 14th Court of Appeals affirmed the trial court’s denial of defendant’s motion to suppress on the grounds that the traffic stop was illegal and without reasonable suspicion of criminal activity. The trial court found the officer’s testimony credible. The officer testified that appellant failed to maintain a single lane twice, cut the corner while making a left-hand turn, and then crossed the lane divider two more times. The officer testified that other vehicles were in the area and he considered those other vehicles in his decision to initiate the traffic stop.  On cross-examination, the officer testified that there was no other traffic around. The appellate court cited Gajewski v. State, 944 S.W.2d 450 (Tex. App.Houston [14th Dist.] 1997, no pet.) for the premise that by weaving in and out of traffic lanes, appellant demonstrated he was unable to safely operate a motor vehicle and if he continued to operate the vehicle, he was a danger to himself and other drivers in the area. Read the opinion here.


Evidentiary Issues:


Retrograde Extrapolation:

Veliz v. State No. 14-14-00057. Opinion issued 8/18/15. Petition for Discretionary Review filed 8/20/15. The 14th Court of Appeals reversed and remanded for a new trial finding that the trial court erred in admitting the retrograde extrapolation testimony and held that the error affected appellant’s substantial rights. This case involved one blood test conducted three and a half hours after the stop. The State’s expert knew the time of the stop, if the appellant ate anything, appellant’s height and weight and the concentration at the time of the stop. Citing the criteria set forth in Mata v. State, 46 S.W.3rd 902 (Tex. Crim. App. 2001), the appellate court held that the State failed to prove by clear and convincing evidence that the expert’s testimony about retrograde extrapolation was reliable and that the trial court therefore abused its discretion in admitting the testimony. Citing Bagheri v. State, 119 S.W.3d 755 (Tex. Crim. App. 2003) and Owens v. State, 135 S.W.3d 302 (Tex. App.Houston [14th Dist.] 2004, no pet.) the appellate court held that the error affected defendant’s substantial rights. Read the opinion here.


Blood Tests:

Hector Rodriguez v. State No. 01-12-00970-CR. Opinion issued 6/25/15. Motion for rehearing filed 8/10/15. The First Court of Appeals affirmed the trial court’s denial of defendant’s motion to suppress his medical records and blood-test results in violation of state and federal law and his rights under the 4th Amendment. The appellant was transported to a hospital following his arrest for DWI.  He refused to consent to the taking of a blood specimen.  The nurse informed the officer that he would be drawing defendant’s blood for medical purposes.  The officer asked the nurse to use Betadine instead of alcohol to disinfect the site of the blood draw, which the nurse did. The day after the incident, the Harris County D.A.’s office issued a grand jury subpoena to the hospital’s custodian of records seeking Defendant’s medical records.  The hospital’s custodian provided the records.  The records revealed that the blood-alcohol concentration in the sample was .209. The appellate court  relied on Kirsch v. State, 276 S.W.3d 579, 587 (Tex. App.—Houston [1st Dist.] 2008), aff’d on other grounds, 306 S.W.3d 738, 749 (Tex. Crim. App. 2010);and State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), and held that the 4th Amendment, Texas Medical Practices Act and HIPAA do not create a reasonable expectation of privacy in medical records and blood-test results in connection with medical treatment for injuries sustained while in custody under suspicion of intoxication.  Read the opinion here.


Dromgoole v. State No. 01-13-00931-CR. Opinion issued 7/23/15. Motion for Rehearing denied 8/20/15. - The 1st Court of Appeals modified the judgment of the trial court and affirmed as modified. Arresting officer was returning to his vehicle when appellant drove past him and nearly hit him.  The officer pursued defendant’s vehicle and observed her drive through two red lights.  After appellant pulled over, the officer approached her car and observed her to have glassy eyes, slurred speech and a moderate smell of alcohol.  Appellant acknowledged consuming two alcoholic drinks in the evening.  Before conducting any field sobriety tests, the officer asked appellant if she had any medical conditions.  Appellant responded that she had syncope, which she described as low blood pressure.  She explained that with syncope her blood pressure drops and then she faints. After performing the field sobriety tasks, the appellant was arrested and transported to the police station.  She was unable to exit the police car at the station because she was having difficulty with her syncope.  Ten minutes later, she was able to get out of the car. While in the holding cell she got into a fist fight with another woman.  The arresting officer broke up the fight.  Appellant did not exhibit any dizziness or lightheadedness at the end of the fight. Appellant refused to submit to a blood draw so the officer sought and obtained a search warrant for a blood draw. The officer led appellant into the blood draw room, she was seated in an inclined chair and a nurse drew her blood. The report from the test indicated a blood alcohol concentrations of 0.17. Appellant filed a motion to suppress the blood test results arguing that the blood draw violated the 4th Amendment of the US Constitution because her medical condition was omitted from the affidavit in support of the warrant for the blood draw and because her medical condition of syncope rendered the blood draw unreasonable as it applied to her. The trial court denied the motion to suppress.  Citing State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) the appellate court held that before requiring a defendant to submit to a blood draw, a police officer does not have a duty to inquire into the defendant’s medical history.  The suspect is in the best position to identify and disclose any particular medical condition that could result in risk, trauma or more than de minimus pain if a blood draw were to be performed. The court concluded that the defendant bears the burden to establish that she notified the officer or the person performing the blood draw that her relevant medical history would render a blood draw unreasonably medically risky. The court also held that a defendant seeking to suppress a blood draw as an unreasonable search and seizure must prove (1) the police were not justified in requiring the defendant to submit to a blood test, (2) drawing the defendant’s blood was an unreasonable method to determine intoxication, or (3) the procedure for the blood draw was unreasonable and further if the defendant is seeking to prove the second or third elements by proving the existence of a medical condition, the defendant must additionally prove (1) the defendant had a medical condition (2) that created an unreasonable risk of medical harm for a blood test and (3) that the defendant sufficiently notified the police or the person performing the blood draw of the risk posed by the blood draw.   The court held that appellant had failed to establish those requirements.

At trial the appellant made additional objections to the admission of the blood test. Appellant argued that the blood draw technique was not properly applied because the machine that performed the test had not been properly validated because the machine’s vial oven had been set at 60 degrees Celsius when it was intended to be set at 70 degrees Celsius. The trial court denied the second motion to suppress. The appellate court, citing Reynolds v. State, 204 S.W.3d 386 (Tex. Crim. App. 2006) held that when a defendant challenges the reliability of a blood–alcohol test, the determinations for a trial court to make in the modified Kelly hearing is whether the technique applying the theory is valid and whether the technique was properly applied on the occasion in question.

Joel Navarro v. State
No. 14-13-00706-CR. Substitute Opinion issued 7/7/15.  Petition for Discretionary Review filed 7/24/15. The 14th Court of Appeals rendered a judgment of acquittal on the Class A misdemeanor (DWI above .15) and remanded for a new trial on the Class B misdemeanor (DWI).

Appellant and his fiancée were involved in a single vehicle accident.   The vehicle rolled three times and landed upright. An eyewitness testified that he saw appellant climbing out of the driver’s side window.  His fiancée was unconscious and lying about thirty-give feet away from the vehicle.  Appellant told first responders that he was driving. Appellant told an EMT that he had consumed at least four beers on the night of the accident.  Blood evidence was obtained at the hospital where appellant was treated.  The hospital collected a vial of appellant’s whole blood which was placed into a centrifuge.  The vial was spun separating the blood cells from the blood plasma.  A test of the blood plasma revealed that appellant had a BAC of 0.158.

The State’s expert testified that the concentration of alcohol in blood plasma is higher than in whole blood. The expert opined that a BAC of 0.158 in blood plasma could be converted to a BAC of 0.132 in whole blood. Based on the assumption that appellant had been in the elimination phase, the expert believed that appellant had a BAC of 0.133 in whole blood at the time of the accident.

The trial court instructed the jury that it could make a finding of intoxication in either of two ways: (1) if appellant did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body, or (2) if appellant had an alcohol concentration of 0.08 or more. “Alcohol concentration” was defined in the court’s charge as “the number of grams of alcohol per 100 milliliters of blood.” Appellant objected to this definition because it did not specify that the blood must be whole blood. Appellant requested that the definition be revised to read as follows: “the number of grams of alcohol per 100 milliliters of whole blood.” The trial court denied the request.

The jury convicted appellant of driving while intoxicated but it did not make the additional finding that he had “an alcohol concentration level of at least 0.15” as alleged in the charging instrument.  The trial court did not submit that issue in the jury trial. Appellant elected to have the trial court assess his punishment.  No new evidence was offered during this phase. The trial court began the hearing by treating the additional allegation in the charging instrument as an enhancement paragraph, which the court found to be true. By making an affirmative finding that appellant had “an alcohol concentration level of at least 0.15,” the court applied a range of punishment applicable to a Class A misdemeanor, instead of a Class B misdemeanor, which is what appellant would have faced without the perceived “enhancement.”

On appeal the 14th Court found the evidence sufficient that appellant was the driver and that he was intoxicated and that a rational jury could have found every element of the offense beyond a reasonable doubt.

Citing Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 20015), the court examined whether a person’s alcohol concentration level provides a basis for enhancement, as the trial court believed, or whether it functions as the element of a completely separate offense, as the State asserted on appeal. The appellate court found that in reading §49.04 (d) its effect is to convert an offense from a Class B misdemeanor to a Class A misdemeanor whenever a person charged with driving while intoxicated is shown to have “an alcohol concentration level of 0.15 or more.” Because this conversion represents a change in the degree of the offense, rather than just an enlargement of the punishment range for a Class B misdemeanor, the appellate court found that a person’s alcohol concentration level is not a basis for enhancement. It is instead an element of a separate offense because it represents a specific type of forbidden conduct—operating a motor vehicle while having an especially high concentration of alcohol in the body.

Appellant contended that the trial court committed charge error when it denied a request to clarify the definition of “alcohol concentration” so that it was expressed in terms of “whole blood,” rather than just “blood.” The appellate court found that the word “blood” is capable of only one meaning under the Penal Code, and the jury should have been instructed as to that meaning because it was the law applicable to the case. Because the jury heard testimony regarding both whole blood and blood plasma, the court concluded that it was error to refuse appellant’s requested instruction, which removed the possibility of confusion by specifying the type of blood evidence that was available for consideration. The appellate court found this error to be harmful error. Read the opinion here.


by Judge Laura Weiser, Judicial Resource Liaison

Can you compel attendance at AA or other faith based twelve step recovery programs as a condition of probation or participation in a treatment court?

Let’s first define what programs the question includes.

Traditional twelve step programs are peer support programs, not substance abuse treatment programs. AA has twelve steps outlined in the book, “Alcoholics Anonymous” commonly called “the Big Book” Most twelve step meetings include a discussion of one or more of the twelve steps, sharing of personal stories of recovery and prayer. These programs also include obtaining a sponsor, a mentor who has had success in recovery.

For the Purposes of Federal Funding:

 In 2002, President George W. Bush issued Executive Order 13279, and in 2004, the DOJ issued the regulations, Equal Treatment for Faith-Based Organizations (Equal Treatment Regulations), 28 C.F.R. pt. 38. In 2010, President Barack H. Obama issued Executive Order 13559 on federal funding of faith-based organizations. The Executive Orders and the Equal Treatment Regulations prohibit recipients from using DOJ financial assistance to engage in inherently (or explicitly) religious activities, such as proselytizing, scripture study, or worship. Faith-based recipients may, of course, engage in inherently religious activities; however, these activities must be separate in time or location from the program supported with DOJ financial assistance and participation in these programs must be voluntary. Recipients must not compel beneficiaries of the DOJ-funded program to participate in inherently religious activities, and they must not discriminate in the delivery of services or benefits on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to participate in a religious practice. The DOJ has found twelve step programs to be an inherently religious activity.

For the Purposes of the 1st Amendment: Courts have repeatedly found that traditional twelve-step programs contain religious content and are religious activities. See Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007) (holding that AA has substantial religious components and that compelling individuals to participate in AA as a condition of parole violates the Establishment Clause). See also See Warner v. Orange County Dept. of Probation, 115 F.3d 1068 (2nd Cir.1997), affirmed by Warner v. Orange County Dept. of Probation, 173 F.3d 120 (2nd Cir.1999), cert. denied sub nom. Orange County Dept. of Probation v. Warner, 528 U.S. 1003, 120 S.Ct. 495, 145 L.Ed.2d 382 (1999); Kerr v. Farrey, 95 F.3d 472 (7th Cir.1996). In reaching this determination, courts have relied upon several factors, such as the fact that the twelve steps are based on the monotheistic idea of a single God or Supreme Being, which is rooted in the religious concept of a Higher Power.

So what does this mean for Courts?

If you are a direct or sub-recipient of DOJ funds you cannot use those funds for literature, classes, meetings, counseling sessions, or other activities that support twelve-step programs. You must ensure that you do not compel participants of DOJ funded programs to participate in twelve step programs and you cannot penalize a participant who chooses not to participate. If you have further questions that relate to the use of these funds you may want to review these FAQs.

If you require participation in a peer support group as a condition of probation or participation in a treatment court, you must allow secular programs to satisfy this requirement. Some secular programs are: SMART Recovery (http://smartrecovery.org.) for a list of Texas meetings go here; Rational Recovery (http://rational.org/) this organization does not meet in groups, the material they provide (at a cost) is to guide an individual through recovery; LifeRing (http://lifering.org) They have face to face meetings in Austin and Cedar Park; Women for Recovery (www.womenforsobriety.org); and Moderation Management (www.moderation.org) this organization includes approaches to both moderation and abstinence behavior changes. They have a face to face meeting in Houston. These organizations have online resources as well. This is in no way an exhaustive list.


It appears that courts should not require attendance and participation in a twelve step recovery program. Such requirement may result in a loss of federal funding and could expose the court to litigation under 42 U.S.C. §1983.

An alternative may be to order attendance and participation in a peer support recovery program of the participant’s own choice. If there is no secular alternative available, a participant should not be compelled to attend. Please keep in mind that the courts have held that it is not necessary for the participant to object to participation for the requirement to violate the 1st Amendment. (See Warner v. Orange County Dept. of Probation above.) Some treatment courts are not requiring participation in a peer support program but are choosing to reward those participants who choose to attend.



Please nominate!

Where: Sheraton Austin at the Capitol

DWI Court Team BASIC Training
February 8-10, 2016


Have you recently joined or created a DWI Court in your jurisdiction? Do you have new members on your established DWI Court team? Have you been wondering what a DWI Court is and if it might be right for your community?  Are you intrigued by the concept of a specialty court but would like to know more before jumping in?


If any of these questions apply to you, be sure to register for the DWI Court Team Basic raining. You may come alone, with your team, with an exploratory committee or any other configuration that works for you. The training will be held in Austin Monday, February 8 through Wednesday, February 10, 2016.  

DWI Court Team ADVANCED Conference
February 11-12, 2016

The DWI Court Team Conference will be held that same week from Thursday, February 11, 2016 through Friday, February 12, 2016 also at the Sheraton Austin. Established DWI Court Judges and their teams are invited to register for this conference. New teams and team members may register for the entire week.

If you attended either conference in 2015, please click here to take a very brief and anonymous survey to help us determine

Scenarios needed!

NewsAppeals court reverses DWI Conviction
(PostBulletin.com, 08/17/2015)
ST. PAUL -- The Minnesota Court of Appeals ruled last month that the police officer who stopped Maurice Antwan Hegwood's vehicle early Feb. 17, 2013 — a stop that led to a DWI charge — didn't have a "reasonable" suspicion of criminal activity.

SAPD officers cite 'drugged drivers' with DWIs
(KSAT.com, 07/07/2015
SAN ANTONIO - When police officers observe a swaying car on the road and initiate a traffic stop to find that the driver's speech is slurred, a common assumption would be that person had been drinking. Officers on the DWI patrol see this type of behavior all the time, but it's not always a drunken driver.

High rate of Hispanic DUIs roils families, officials
(Houston Chronicle, 06/14/2015
Alejandra de la Garza was hesitant to get in the car with her husband on that cold winter night. He was acting erratically. He'd had too many drinks to be driving.

The National Center for DWI Courts DWI Court Reporter publication includes information on the Substance Abuse and Mental Health Services Administration's (SAMSHA) recent publication Medication for the Treatment of Alcohol Use Disorder: A Brief Guide.

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 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.