Summer 2015 Newsletter

Several bills that passed in the 84th legislative session will affect handling of DWI cases and occupational drivers’ licenses. Here is a brief look:

	A.	DWI:
		1.	HB 3791 by Geren
			Amends Chapter 2 of the Code of Criminal Procedure to add Art. 2.139. A person stopped or arrested for an offense under Penal Code Sections 49.04-49.08 is entitled to receive a copy of any video of the stop, the arrest, the conduct of the person stopped during any interaction with the officer, or a procedure in which a specimen of the person’s breath or blood is taken. Applies only to a recording of conduct occurring on or after September 1, 2015. This bill should not require court intervention as the bill enables a defendant or defendant’s counsel to request these items directly from the law enforcement agency.
		2.	HB 1264 by Wu
			Adds Article 38.50 to Chapter 38 of the Texas Code of Criminal Procedure. Requires retention and preservation of a blood or urine specimen that was collected as part of an investigation of an alleged offense under Chapter 49 of the Texas Penal Code. Applies to a governmental or public entity or individual that is charge with the collection, storage, preservation, analysis, or retrieval of toxicological evidence. Requires retention for two years or the period of the statute of limitations if an indictment or information has not been presented. Requires retention for the term of supervision, if applicable or for the duration of the defendant’s sentence. If defendant is acquitted or the indictment or information is dismissed with prejudice, requirement of retention ends. This requires that the COURT determine as soon as practicable the appropriate retention and preservation period for the toxicological evidence and notify the defendant and the entity or individual charged with storage of the evidence. I’ve been contacted by a representative from the DPS labs. They are working on a proposed form that could be used to make this notification. They have indicated that they will have it ready before our annual conference in September. This article applies to all toxicological evidence stored by an entity or individual on or after September 1, 2015 regardless of whether the evidence was collected on or before the effective date.
		3.	SB 1070 by Hinojosa
			Amends Section 13, Article 42.12 of the Code of Criminal Procedure and Section 521.374 of the Texas Transportation Code to require the judge to waive the requirement of a DWI, Repeat DWI or Drug Education program if the defendant successfully completes an equivalent program at a residential treatment facility. Change applies to a person placed on community supervision on or after September 1, 2015 or to a person whose license is suspended on final conviction for an offense on or after September 1, 2015.
	B.	Occupational Licenses:
		1.	HB 2246 by Villalba et al
			Allows a defendant whose license is suspended for an offense under Sections 49.04-49.08 (DWI, DWI w/child passenger, FWI, BWI, Assembling Or Operating An Amusement Ride While Intoxicated, Intoxication Assault and Intoxication Manslaughter) to operate a motor vehicle during the period of suspension if the defendant obtains an ignition interlock device and applies for and receives and occupational driver’s license. Does not require proof of essential need just evidence of financial responsibility and proof of installation of an IID on each motor vehicle owned or operated by the defendant. No time, geographical or purpose restrictions are permitted. IID must remain installed for the entire period of suspension.  This will be a game changer for ODL’s based on intoxication offenses. What about non-alcohol DWI’s? It appears that if the defendant wants the benefit of this type of ODL, he will have to install an ignition interlock. I would highly recommend additional conditions to the ODL to test for the defendant’s drug of choice.  This change applies only to a person whose driver’s license is suspended on or after September 1, 2015, regardless of whether the underlying incident giving rise to the suspension occurred before, on or after September 1, 2015.
		2.	HB 441 Larry Gonzales
			Amends Section 521.249(a) to allow a person to use a copy of the order granting the occupational driver’s license until the 45th day after the date on which the order takes effect. (increased from 30 days)
	C.	Other Laws:
		1.	HB 326 Means-Electronic Search Warrants
			Amends Article 18.01 of the Code of Criminal Procedure to add Subsection (b-1), which authorizes a magistrate to consider information communicated by telephone or other reliable electronic means in determining whether to issue a search warrant. The magistrate may examine an applicant for a search warrant and any person on whose testimony the application is based. The applicant or other person must be placed under oath before the examination. The magistrate shall ensure that any testimony is recorded verbatim. The magistrate must sign, certify the accuracy of, and preserve any written record. This will certainly come up in the issuance of blood search warrants. Lots of logistical information provided in this bill. I recommend a careful read and a review of your search warrant procedures well in advance of September 1, 2015.
		2.	HB 3633 Herrero-Reimbursement for Costs of Legal Services
			Amends Article 26.05(g) Requires that the judge determine whether the defendant has financial resources that enable the defendant to offset in part or in whole the cost of legal services provided to the defendant before ordering the defendant to pay the costs of those services. The amount ordered cannot exceed the actual costs paid by the county.

CONFERENCE WRAP-UP

July's Impaired Driving Symposium was a collaborative effort between the Texas Center for the Judiciary, Texas Association of Counties, Texas Justice Court Training Center and Texas Municipal Courts Education Center, that brought together more than 150 judges of all levels to discuss impaired driving issues. The Symposium addressed topics such as blood search warrants, probable cause, bond conditions and occupational licenses. Handouts and presentations from the conference can be found by logging in to your judicial profile at www.yourhonor.com.

 

MARK YOUR CALENDARS!

There's still time to register to attend the DWI Summit Amarillo on Thursday, September 10! Click here for more details.

The 2016 DWI Court Team Training will be held in conjunction with the DWI Court Team Conference at the Sheraton Austin at the Capitol. The DWI Court Team training, open to new DWI Court teams and new team members, will be held Monday - Wednesday, February 8-10. The DWI Court Team Conference will be held Thursday and Friday, February 11-12, and is open to all DWI Courts.

The 2016 Impaired Driving Symposium will be held at the Sheraton Austin at the Capitol, August 4-5. With participation from the Texas Association of Counties, the Texas Municipal Courts Education Center and the Texas Justice Court Training Center, the Symposium gathers all levels of the judiciary together in one room to discuss impaired driving issues.

Since it was first created in March 2011, the Hidalgo County DWI Court Program continues making a difference by working to break the cycle of alcohol addiction and criminality in communities in the Rio Grande Valley.

The DWI Court Program overseen by Presiding Judge Jose Roberto “Bobby” Flores takes place every Monday at 8 a.m. at the 139th Hidalgo County District Court. It is an alternate court designed to handle cases involving alcohol offenders through an intensive judicially monitored program of drug treatment and rehabilitation services.

Some of the many goals of the DWI Court Program include providing early and effective intervention in selected DWI cases and reducing the contact offenders have with the criminal justice system by introducing offenders to a rehabilitative process intentionally designed to result in a total abstinence of alcohol and drugs. Each year, the program aims to serve about 80 adult offenders.

According to Orlando Esquivel, the court’s assistant district attorney, the program’s treatment-based approach has an impact on offenders.

“The DWI prosecution looks closely at each individual,” Esquivel explained. “It focuses more on treatment than punishment.”

Besides offering a second chance at life to offenders, the program is also much less expensive. Unlike the estimated typical cost of a DWI Felony Conviction being about $17,593, the estimated cost for the DWI Court Program is about $2,878.

Although the alternative court is a rigorous judicially monitored program, the assistant district attorney said the judge’s commitment and concern plays a major role in the rehabilitation of offenders.

“Judge Flores is very compassionate,” Esquivel said. “He listens to their problems and treats them like people not numbers.” Under the judge’s closed supervision, 128 participants have successfully graduated from the program since 2011.

According to Esquivel, while Judge Flores is willing to listen to offenders, he demands punctuality and respect in his court. As a result, the attorney shared that the judge has become a father figure to many of the participants in the program.

“I think a lot of them don’t want to mess up because they don’t want to disappoint him,” said Esquivel.

In a letter to Judge Flores, a recent DWI Court graduate who preferred to be kept anonymous shared his appreciation for the support he received.

“The judge was always interested and cared for our particular situations,” the graduate wrote. “He showed compassion as well as empathy towards individuals in the program.”

As a result, the graduate felt he learned from his experience with the DWI Court Program.

“The opportunity has allowed me to reflect on decisions, mainly mistakes, that have occurred not only in the last year, but in my life,” he said. “It allowed me to grow in ways I could not have done on my own due to the judge and all the administrators.” 

IN THE NEWS

Appeals 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.