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 tha
t 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.”