Summer 2018

Impaired Driving 2018 Case Law Update

by Judge Laura A. Weiser, Judicial Resource Liaison

Search and Seizure

Lerma v. State PD-1229-16 Court of Criminal Appeals 1/24/18

The issue before the Court of Criminal Appeals was: Does an officer unreasonably prolong a traffic stop when he asks a passenger to exit the vehicle to determine identity before conducting a computer check on the driver’s information or issuing a citation?

The Court held that a traffic stop becomes unlawful if it is prolonged beyond the time reasonably necessary to complete the tasks associated with the traffic stop. An officer may request vehicle registration, proof of insurance, a driver’s license, or other information from the driver and run a computer check on that information. Questions posed to the driver and passengers unrelated to the reason for the stop are permitted, as long as the questioning does not unnecessarily extend the length of the stop. The traffic stop investigation is resolved once the computer check is completed and the officer has issued a citation, but there is no rule that an officer must immediately conduct a computer check on the driver’s information before questioning the passengers. A license check unduly prolongs the traffic stop only when the officer acted unreasonably under the circumstances. The traffic stop is not unreasonably prolonged when an officer asks a passenger to exit the vehicle and has reasonable suspicion to conduct a pat-down within the first five minutes of the traffic stop.

Jury Charge Issues

Jose Oliva v. The State of Texas PD-0398-17 Court of Criminal Appeals 5/23/18

The issue before the court was: whether the existence of a prior conviction that is necessary for a Class A misdemeanor charge is an element of the offense which would require proof during guilt/innocence or whether it is punishment evidence.

Originally, the 14th COA reversed the trial court’s judgment holding that the existence of a prior conviction for DWI which is necessary to charge the DWI as a Class A misdemeanor was an element of the offense and must be proven during the guilt/innocence phase of the trial. The Court of Criminal Appeals reversed the 14th COA and affirmed the trial court. The Court concluded that the existence of a prior conviction for DWI as required in 49.04(a) is a punishment issue, not an element of the offense to be proven at guilt/innocence.

Ramjattansingh v. State No. PD-0972-17 Court of Criminal Appeals 6/6/18

The issue before the court was: whether the filing of a charging instrument containing non-statutory language prohibited the appellate court from considering the hypothetically correct jury charge in a sufficiency review.

The State’s information alleged that Appellant had committed the offense of DWI. It also alleged that he had a BAC of 0.15 or more at the time the analysis was performed making the offense a Class A misdemeanor. The information then went further and alleged that Appellant had this BAC “at or near the time of the commission of the offense,” an allegation not required by the statute. The jury charge tracked the information, requiring the jury to find this extra element. The State did not object to the charge. The Appellant was found guilty by a jury. The COA reversed, finding insufficient evidence of the extra allegation that Appellant had a BAC of 0.15 at or near the time of the commission of the offense. The Court of Criminal Appeals answered no and held that when a jury instruction adds an element to the charged crime, challenges to the sufficiency of the evidence are assessed only against the elements of the crime from a hypothetically correct jury charge. A hypothetically correct jury charge will not include the added element unless the variance is material. An unnecessary element that does not relate to the unit of prosecution is immaterial. This still applies even if the State included the element in the charging instrument and did not object to the unnecessary element in the jury charge. Here, the defendant was charged with a DWI enhanced to a Class A misdemeanor by having a BAC over 0.15 at the time of testing. The additional element alleging that the defendant had a BAC over 0.15 at the time of driving is immaterial.

Blood Tests

State v. Martinez 13-15-00592-CR 13th COA 7/13/17 PDR granted 1/24/18

The issue before the Court was: may the State, without a search warrant, independently test a blood sample drawn from a defendant by a medical professional in the course of treatment?

The COA answered no. There are three separate stages in which a defendant’s 4th Amendment protections may be implicated with regard to blood alcohol tests: 1) drawing the blood sample, 2) testing the blood sample, and 3) obtaining the test results. Although the State may use a grand jury subpoena to receive medical records, including test results, or to seize a blood sample that has already been drawn, a search warrant is required before the State itself may conduct any tests.

State v. Ruiz 13-13-00507-CR 13th COA 1/11/18 PDR granted 4/25/18

The issue before the court was: whether the totality of the circumstances justified a warrantless blood draw due to exigent circumstances.

This cause was before the 13th COA for the second time after being vacated and remanded by PD-1362-15. During the time this case was on appeal, the CCA decided two cases dealing with exigent circumstances as an exception to the warrant requirement for a blood test. (Cole v. State, 490 S.W.3rd 918 [Tex. Crim. App. 2016] and Weems v. State 493 S.W.3rd 574 [Tex. Crim. App. 2016]) In this case the trial court suppressed a warrantless blood alcohol test taken when police found Defendant unconscious after leaving the scene of a car accident. The State appealed, arguing that either Defendant impliedly consented to the blood draw; or that exigent circumstances justified it under recent precedent. First, the appellate court found implied consent inapplicable where Defendant was unable to give or revoke his consent. Second, the court found probable cause for arrest where police found exploded beer cans in Defendant's car; then found him unconscious in a nearby field, emitting a strong odor of alcohol. However, the arresting officer's claim that taking one of two officers off regular duty that night to apply for a warrant would be "unreasonable" did not establish exigent circumstances to justify a warrantless blood draw, particularly absent any procedures in place to procure a late-night warrant on a weekend. The court distinguished intervening precedent, which involved a serious fatal accident with explosions and fires requiring every available officer to shut down several major intersections and an active crime scene investigation from 10:30 p.m. until 6 a.m. the next day. That case also involved concern that pain medication given while awaiting a warrant would affect a blood test for methamphetamines. (Cole) Waiting two or three hours to obtain a warrant in the instant case would not have affected the outcome because blood alcohol dissipates gradually and relatively predictably, such that experts can extrapolate blood alcohol level at the time of the offense from blood drawn considerably later; and Defendant remained in the hospital overnight. The court concluded the totality of circumstances did not justify the warrantless blood test and accordingly affirmed its suppression.

Miscellaneous

Baxley v. State, 06-17-00189-CR 6th COA 4/9/18

The issue before the court was: whether a predicate DWI conviction was void because the judgment indicated that Defendant was not represented by counsel.

Appellant argued that because the judgment of one of the predicate DWI convictions (Hunt County) failed to identify defense counsel and failed to allocate attorney’s fees this establishes that he was not represented by counsel and thus the predicate DWI is void citing Burgett v. Texas, 389 U.S. 109. The Hunt County judgment in question stated that Defendant and the Defendant’s attorney were also present. The signature line for the defense attorney was blank. The 6th COA held: “The appellate record in this case does not establish on its face that Baxley was indigent or that he was not represented by counsel at the time of the 2008 Hunt County conviction, and he did not establish those facts by other testimony or evidence. Accordingly, Baxley has failed to conclusively establish that the Hunt County judgment was void, and “[t]he presumption of regularity prevails.”

Venegas v. State, 04-16-00541-CR 4th COA 4/25/18

The issue before the court was: whether the trial court abused its discretion by admitting a computer animation of the accident.

The jury found the Appellant not guilty of intoxication assault and guilty of failure to render aid and aggravated assault causing serious bodily injury. The trial court sentenced the Appellant, in absentia, to five-years’ confinement in the Institutional Division of the Texas Department of Criminal Justice on the failure to render aid, and to twenty-years’ confinement on the aggravated assault causing serious bodily injury. On appeal, Appellant asserted (among other points of error) that the trial court abused its discretion by admitting a computer animation of the accident because it was based on estimates and not actual measurements. The COA found that the trial court did not abuse its discretion, concluding any potential unfair prejudice resulting from the computer animation was not substantially outweighed by the exhibit’s probative value.

Amberson v. State 13-16-00306-CR 13th COA PDR Filed 7/2/18

The issue before the court was: whether the court erred in admitting testimony regarding the identity of a controlled substance based on information from drugs.com and the Drug Identification Bible.

The Appellant was charged with one count of driving while intoxicated and one count of intentionally or knowingly possessing a controlled substance, specifically clonazepam, in an amount of less than 28 grams. At trial, the patrol officer testified regarding the identity of alleged drugs based upon drugs.com and the Drug Identification Bible 2014 to 2015 (Drug Bible). The Appellant was aquitted of the DWI and convicted of Possession of a Controlled Substance and appealed. The appellate court held that the information relied on by the patrol officer constituted hearsay. Therefore, its admissibility depends on whether the officer’s testimony was either properly lay or expert opinion testimony. And, “helpful testimony by a witness who does not possess personal knowledge of the events about which he or she is testifying” was expert testimony. Therefore, the court must determine whether the officer was indeed an expert. And, concluded that because the officer was not an expert, he could not sponsor excerpts from either drugs.com or the Drug Bible. The State failed to present any persuasive evidence on why it was necessary for the officer to reference drugs.com. The State also failed to present any persuasive evidence on the reliability of drugs.com. Lastly, the only evidence identifying the clonazepam came from the officer and his reliance on drugs.com and the Drug Bible. On that record, the court could not say that the court had a fair assurance that the error did not influence the jury, or influenced the jury only slightly. Therefore, the court found the error harmful. Accordingly, the judgment was reversed and remanded.

John Kenneth Lee v. The State of Texas, PD-01736 Court of Criminal Appeals 6/13/18

The issue before the court was: whether the trial court abused its discretion in failing to grant Appellant’s motion for mistrial based on the presentation of inadmissible blood draw testimony before the jury.

The 13th COA reversed Appellant’s conviction for Driving While Intoxicated, holding that the trial court abused its discretion in failing to grant his motion for mistrial. The information alleged that Appellant operated a motor vehicle in a public place while intoxicated. It did not allege a particular theory of intoxication. Immediately before jury selection, the prosecutor announced that the blood sample had been destroyed by the Victoria Police Department prior to trial. The trial court invited defense counsel to request a motion in limine and she declined. A half hour of the prosecutors voir dire consisted of questioning the venire members about whether they would be able to convict a defendant based upon evidence of his loss of mental or physical faculties alone, in the absence of BAC evidence. Towards the end of voir dire the prosecutor did explain what he believed the evidence would show with respect to Appellant’s BAC. Defense counsel made no objection. During her opening statement, she told the jury that she did not expect there to be evidence of Appellant’s BAC. After several State’s witnesses testified about the blood draw and testing, defense counsel objected and the judge sustained the objection and ruled the BAC evidence inadmissible. Defense counsel asked for a mistrial at three different times during the course of the trial, but never for a limiting instruction. The CCA found that an instruction to disregard the blood-draw testimony, including an admonishment not to consider the prosecutor’s opening statement assertion about the BAC results would have been efficacious. Therefore, Appellant should not have been heard to complain on appeal of the trial court’s failure to grant his motion for mistrial.

Traffic Resource Center for Judges

The Traffic Resource Center is a cooperative effort between the National Highway Traffic Safety Administration (NHTSA) and the National Center for State Courts (NCSC) to establish a resource for judges, court administrators, court clerks, and other court staff on issues related to traffic and impaired driving adjudication. It is an integrated clearinghouse of information as well as a training and technical assistance resource to improve court decision-making and processing of traffic cases involving impaired driving, drugged driving, and distracted driving.

The purpose of the Traffic Resource Center website is to provide a useful, ready reference for judges new to the bench or recently assigned to traffic cases who may need quick access to accurate and timely information until they can receive more formal, structured education. Available resources include a set of videos on topics relating to impaired driving adjudication. A total of six videos are currently available here.

The Law Enforcement Advanced DWI Reporting System (LEADRS) is 100% funded by Texas Department of Transportation through grant funds and is free to all agencies. The system streamlines the DWI report writing process for officers in the field by reducing the amount of redundant data. Once an officer completes a case report the system will auto populate nearly every form associated with a DWI arrest thus saving officers valuable time. The system in turn delivers a well detailed report to district and county attorneys to successfully prosecute the case. Information from the most recent survey of LEADRS users revealed a 58% reduction in reporting time; although, new officers can complete a DWI case report in approximately 60 minutes.

Utilizing current LEADRS technology and assistance from the Texas District and County Attorney’s Association (TDCAA) the program implemented its electronic signature blood search warrant in March of 2017. This process allows for officers and judges to securely sign the necessary documents remotely using any device that has the capability to the access the internet (smartphones, tablets, desktop etc.). The blood search warrant time using LEADRS has been reduced to approximately twenty minutes. To this date, LEADRS staff has trained nearly 100 judges on the new warrant process. Now, several counties across the State exclusively use the system to process their DWI arrest and blood search warrants. The amount of blood search warrant requests has almost tripled once an agency has been activated on the new feature.

For more information or to get activated on this feature please contact:
LEADRS Assistant Manager- Jerard Collins at jerard.collins@tmpa.org or 512-906-7845
https://texas.public.leadrs.org/

Drugged Driving Resources

Drugged Driving Resources is a division of Innovation Research and Training (iRT). iRT is committed to conducting high quality, innovative basic and applied research as well as creating products and services that better society with a focus on enhancing the mental health, health, and quality of life of children, adolescents, families, communities, and organizations. iRT's mission is to prevent and reduce the problem of drugged driving in our communities through the dissemination of research informed and evidence-based resources. Staff members apply cutting edge clinical and technical knowledge and skills to developing and evaluating, and helping others to develop and evaluate, evidence-based programs and services. More information and access to resources can be found here.

DWI Court Team Basic Conference
January 28-29, 2018
Sheraton Georgetown

DWI Court Team Advanced Conference
January 30-February 1, 2018
Sheraton Georgetown

In the News

News

Split Supreme Court Approves Warrantless Blood Draw in DWI Case
(New Jersey Law Journal,3/28/2018)
The majority ruled in "State v. Zalcberg,"a 5-2 decision on Tuesday, that a lack of training for police about the need for and availability of telephonic warrants—in the context of a serious road accident and a changing landscape for such warrants at the time—could form an exigency that renders the warrantless blood sampling compliant with the Fourth Amendment.

How much marijuana is too much? Legalization means new questions for police
(CBC.CA,4/30/2018)
Pop quiz: what does 30 grams of marijuana look like? It's not an abstract question. Under the federal government's proposed cannabis legalization plan, 30 grams of dried marijuana is the maximum a person can legally possess in a public place. Carry any more and you could be subject to fines, jail time, or both.

Bar Employees Now Charged In Connection With Fatal Drunk Driving Crash That Killed Mother And Baby
(Houston Public Media,4/5/2018)
The Harris County District Attorney’s office said on Thursday a total of four people are now facing charges in connection with the crash that happened on February 28 on the I-45 Feeder Road at El Dorado Boulevard.

El Paso’s DWI Drug Court celebrates successes
(El Paso Times,5/20/2018)
Locking up drug offenders and throwing away the key does not work. Individuals with substance abuse issues need help, not jail. Addiction is a ruthless foe that must be fought with treatment. By not receiving the proper treatment to battle addiction, drug offenders simply do their time, get out, and re-offend.

People Who Make SA Great: Drug Court Judge Tommy Stolhandske
(KENS5,6/28/2018)
It's a courtroom with no jury, and a judge with no black robe, no high bench, and no bonds. Just real people with real problems. Welcome to Bexar County's Adult Drug Court, Judge Tommy Stolhandske presiding.

New: Ignition Interlock Report
The Ignition Interlock Report was written by the The National Center for State Courts as a resource for judges, court administrators, and policymakers with support from the National Highway Traffic Safety Administration (NHTSA). This report reviews the latest research on ignition interlock programs and how they are used from a national perspective (2013-2017). The appendix contains a detailed chart of each state’s ignition interlock program and a comprehensive resource list. It is intended to be a single resource that judges, court administrators, and policymakers can use to implement or improve an interlock program. The resource is also useful in preparing for presentations and in gaining a more well-rounded picture of ignition interlock use across the country.

The Summer 2018 edition of the ABA’s publication, Highway to Justice has been released. You can access it here .

Free webcast by the National Judicial College (NJC): The Role of the Judge in Drug-Impaired Driving Cases, August 14. For more information click here.

NADCP's Advancing Justice announced the launch of the Journal for Advancing Justice, funded by the Bureau of Justice Assistance at the U.S. Department of Justice. This new journal provides justice and public health professionals, policymakers, academics, scholars and researchers a forum to share evidence-based and promising practices on the most pressing issues facing the justice system today. More information can be found here.

Contact Us
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
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.