Jury pool too small after many felt the penalty for drunk driving was not harsh enough.
A Midland County Texas courtroom faced an unusual situation this week after too many potential jurors in a drunk driving case were disqualified. The case involves a woman charged with her third offense for driving while intoxicated in Texas. Under Texas DWI laws, that crime is categorized as a felony. 17 of the 49 members of the jury pool felt the outlined sentencing options included a penalty that was too lenient. Those members were disqualified, and as a result there were not enough potential jurors left to continue the jury selection process.
The full range of punishment presented to the jury panel covered probation to ten years in jail. The seventeen jurors felt probation was not harsh enough for a felony Texas DWI, which caused their dismissal from the pool. The Assistant District Attorney on the case said usually objections are made to the more severe penalties, not probation. He surmised that drunk driving in Texas is perceived as a greater danger now, and that lead to the call for harsher penalties.
The county will call a larger panel of jurors in about three weeks, in hopes of seating an unbiased group.
Police plan ‘no refusal’ blood testing for drivers suspected of driving while intoxicated in Austin.
Chief of the Austin Police Department, Art Acevedo, has announced interest in implementing a ‘no refusal’ breath test policy over the Halloween holiday. Under the controversial program, every motorist suspected of drunk driving in Austin who refuses to submit to a breath test will be forced to submit to a blood draw.
Texas law gives a motorist the right to refuse a breath, blood or urine test. Law enforcement officers will periodically seek a warrant for a blood sample in cases where there was an accident with injury or the driver has a prior felony conviction for driving while intoxicated in Texas. Acevedo’s plan calls for a forcible blood draw from everyone who refuses a breathalyzer test.
Acevedo’s ‘no refusal’ program is still being developed, though he hopes to have a person specially trained to draw blood on duty during the three-night Halloween weekend.
Only those convicted of drunk driving in Nassau County will now appear on the website.
County Executive Tom Suozzi created an internet Wall of Shame last Memorial Day that listed the names and featured photographs of motorists arrested for driving while intoxicated in Nassau County, New York. A state Supreme Court judge has ruled that announcing a New York DWI arrest before the suspect has the opportunity to present a defense in court is a violation of due process.
Suozzi insists he has the right to distribute the information but will alter the site to include only those convicted of drunk driving in New York. DWI defense attorneys have decried the website postings saying that they punish drivers beyond what state statutes allow. Earlier in the year Suozzi was forced to purge the site because it included underage drivers arrested for suspicion of drinking and driving, which was a violation of state law.
Since its inauguration last Memorial Day weekend, approximately 1400 drivers accused of drunk driving in Nassau County have appeared on the site.
The judge’s ruling only directly affects those involved with a lawsuit, though Suozzi anticipates the ruling will lead to more suits being filed. Suozzi plans to appeal the decision, and in the interim the site will only feature those who have been convicted of NY DWI after a trial or have entered a guilty plea.
Three passengers file claim stemming from 2007 drunk driving incident.
In July 2007 Lindsay Lohan was arrested for California DUI in LA after she jumped behind the wheel of an SUV and chased her assistant in a wild car chase following a late-night private party. The owner of the SUV and two passengers have filed charges of assault and battery against the actress over the event.
According to paperwork filed, Lohan and her assistant Taryn were arguing at the party. Taryn’s boyfriend, Dan, was behind the wheel of Dante Nigre’s 2004 Yukon Denali. He left the SUV to talk to Taryn, but she drove off and Lohan jumped into the driver’s seat in pursuit. Ronnie Blake and Jakon Sutter were in the back seat of the Denali and Nigre was in the passenger seat. At one point Blake managed to get out of the vehicle but Lohan accelerated and ran over his foot. She reportedly answered any pleas to stop with ‘hostile wrath’.
Lohan raced down Malibu’s Pacific Coast Highway, running stop signs and red lights, before coming to a stop in the parking lot of the Santa Monica Police Department. She was arrested for driving under the influence in Los Angeles after failing a field sobriety test. At the time Lohan denied driving the SUV, claiming Sutter was behind the wheel.
Blake, Sutter and Nigre claim violent jarring and whipping motions during the chase caused pain. They are seeking at least $50,000 for negligence, assault, battery, false imprisonment, emotional distress, trespass and slander. Lohan’s attorney asked why the men did not simply get out of the SUv, saying the actress stopped more than once during the episode.
Many Texas drivers who are arrested for driving while intoxicated do not realize that a DWI arrest creates two cases. More specifically, a DWI arrest results in a criminal charge, but it also initiates a civil proceeding against the arrested motorist’s driving privileges called an administrative license revocation, or ALR.
An ALR suspension is initiated against an arrested driver when he either refuses to submit to breath or blood testing, or alternatively, fails a breath or blood test. The legal authority to impose an ALR suspension against a driver lies in the Texas implied consent statute. This law states that each person who operates a motor vehicle on Texas roadways has impliedly consented to provide a specimen of breath or blood if arrested for DWI and provided with the applicable consequences of refusing to submit to testing (Texas Transportation Code §724).
The implied consent statute also applies to operators of watercraft in Texas. With regard to Boating While Intoxicated (BWI) cases, a driver’s license may be suspended for refusing - but not for failing - to submit to the taking of a specimen a breath or blood test if a person is arrested for an offense involving the operation of a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above. Further, in all intoxication-related offenses, Texas courts have decided that an individual does not have the right to consult with an attorney before making the decision to refuse or provide a requested specimen. Indeed, in cases where an accident which produced serious life-threatening injury or the possibility of death has occurred, a citizen can be forced to provide a sample of blood.
Notice of ALR Suspension
Many police officers, after arresting a citizen, will tell the arrested driver that if he does not agree to take a breath or blood test that his license will be automatically and immediately suspended. This is incorrect. When making an arrest for DWI, peace officers are required to take possession of any Texas license issued by this state and held by the person arrested and issue the person a temporary driving permit that expires on the 41st day after the date of issuance. Further, a request for a hearing to challenge the proposed suspension will delay any ALR sanctions until a hearing takes place.
Hearing Request Provisions
WARNING !!! An ALR suspension is AUTOMATIC...UNLESS you request a hearing to challenge the suspension, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency on a Department of Public Safety approved form (generally received on the day of arrest). If a hearing is not timely requested, the suspension will automatically begin on the forty-first (41st) day after notice was received. If a hearing is requested, no action will be taken regarding suspension until after the hearing has taken place, even if the hearing takes place more than forty days after the arrest. Further, in the event of an ALR appeal, the suspension can be delayed for an additional 90 days. (Call our office immediately for assistance if you think your license is at risk- 281-332-5600).
The ALR Hearing
The burden of proof at an ALR hearing is on the Department of Public Safety. Once a driver or his attorney has made a timely request for an ALR hearing, no suspension may be imposed against the driver until the Department of Public Safety proves the following elements by a preponderance of the evidence at the hearing:
- That there was reasonable suspicion to stop or probable cause to arrest the driver,
- That probable cause existed that the driver was driving or in actual physical control of a motor vehicle in a public place while intoxicated,
- That the driver was placed under arrest and was offered an opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test, AND
- That the driver refused to give a specimen on request of the officer,
OR, that the driver failed a breath or blood test by registering an alcohol concentration of .08 or greater per 100ml of blood or 210 liters of breath.
Suspension Provisions for Adult Drivers
Without any prior alcohol or drug related contacts against the accused driver during the previous 10-year period, the periods of suspension are as follows:
| Age of Driver | Refusal Penalty Trans. Code §724.035 | Failure Penalty Trans. Code §524.022 |
| 21 or Older | 180 days | 90 days |
| Prior alcohol or drug Contact w/in 10 years | 2 years | 1 year |
NOTE: If the person who refuses is a resident without a license, an order will be issued denying the issuance of a license to the person for 180 days.
NOTE: the term "prior alcohol or drug contact" as used to lengthen the period of suspensions stated above has been defined as “a driver's license suspension, disqualification, or prohibition order under the laws of this state or any other state resulting from a conviction for driving while intoxicated”, “a refusal to provide a requested specimen”, or “providing a specimen showing an alcohol concentration of a level specified in §49.01 Texas Penal Code” (an alcohol concentration of 0.08 or greater).
Reinstatement of Drivers License After Suspension
If no suspension is imposed at the hearing, DPS is obligated to return the Texas license to the person arrested. If a suspension is ordered either automatically or after hearing, a driver must submit a reinstatement fee of $125.00 to TDPS before the license will be reinstated. I advise my clients to send their fee to TDPS as soon as they learn that a suspension has been ordered. Again, because of the huge bureaucracy that has been created under the new law, waiting until the 60th or 90th day to submit your reinstatement fee will prolong reinstatement of your license until the fee has been both received and entered on the TDPS computer system.
There is a special TDPS form that must be submitted to reinstate your driving privileges. This form together with the reinstatement fee must be paid by money order, cashier's check or personal check and sent by certified mail, return receipt requested for proper documentation of payment and receipt to:
Driver Improvement and Control Texas Department of Public Safety P.O. Box 15999 Austin, Texas 78761-5999
One Final Note
In addition to protecting your driving privileges, there is an equally important reason to request an ALR hearing, and that is to better defend you against the DWI charge. Unfortunately, most drivers, and many lawyers who are unfamiliar with DWI defense, do not realize the "discovery" importance of an ALR proceeding. In this regard, the importance of having a hearing to challenge your ALR case is twofold. First, with the assistance of a knowledgeable and skilled defense attorney, many drivers are able to avoid a suspension of their driving privileges. Second, by challenging your license suspension, you are providing your attorney with an opportunity to use the ALR hearing to learn more about how to best defend your DWI charge. In this regard, the "discovery" information obtained through the ALR process can be invaluable to your defense, and is often the deciding factor in determining whether the related DWI charges can be successfully defended against.
Fine: A fine not to exceed $10,000.00.Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 years nor more than ten (10) years. Deep lung air device: Deep lung air devices are generally ordered on all persons convicted of three or more DWI's both as conditions of bond and as conditions of any occupational or provisional licenses that may be awarded after conviction. Community Service: Texas law mandates that a judge order not less than 160 hours nor more than 600 hours. Suspension of license: A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.
Other: A third conviction for DWI indicates a significant problem with alcohol to the Court or jury assessing punishment. Some type of rehabilitative treatment is therefore mandated in punishment if confinement in the penitentiary is to be avoided. In some cases an in-patient, incarceration program (Substance Abuse Felony Probation SAFP) is ordered. This program requires confinement in a State Facility for alcohol rehabilitation. After successful completion of the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years. Another popular condition for habitual DWI offenders is a prescription for a drug named "Antabuse". This drug will make a person violently ill if any alcohol is consumed. The alcohol can be contained in mouthwash or marinated food and will still have the same effect on the user. If a person has any type of liver problems, this drug can cause liver failure and death.
Texas law does not provide for any increased punishment after DWI, third offense. If a person presents a DWI, fourth offense or beyond, the typical punishment is confinement in the penitentiary from two (2) to ten (10) years without probation being granted. In some cases SAFP may be granted upon proper request and showing that it is appropriate. Intoxication Assault: Third degree Felony "A person commits an offense if the person, by accident or mistake, while operating a .... motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another" {Texas Penal Code ß49.07}. " 'Serious Bodily Injury' means injury that creates a substantial risk of death or protracted loss or impairment of the function of any bodily member or organ". Fine: A fine not to exceed $10,000.00.Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years. Community Service: Texas law mandates that a judge order not less than 160 hours nor more than 600 hours. Intoxication Manslaughter: Second Degree Felony "A person commits an offense if the person:1)...operates a motor vehicle in a public place, and...2)...is intoxicated and by reason of that intoxication causes the death of another by accident or mistake." Fine: A fine not to exceed $10,000.00.Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than twenty (20) years. Community Service: Texas law mandates that a judge order not less than 240 hours nor more than 800 hours. NOTE: If a person is involved in an accident where there is risk of death or death, a mandatory blood sample will be taken for analysis and use in the prosecution of either Intoxication Assault or Intoxication Manslaughter.
It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law now requires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install and maintain a deep lung air device on the car that the person intends to drive and operate while charges are pending. The device requires a breath sample before it will allow you to start your car. They also require periodic breaths while driving to monitor and insure sobriety. New technology has made these devices "user sensitive" so that someone else cannot blow into the device for the driver. Although this provision seems to run afoul of the presumption of innocence, Texas Courts have consistently held that such condition is necessary to protect a legitimate governmental interest in making public roadways safe for the motoring public. Fine: A fine not to exceed $4,000.00.Jail: Confinement in the County Jail for a term ofnot less than 72 hours nor more than one (1) year. Community Service: Texas law mandates that a judge order not less than 80 hours nor more than 200 hours. Deep lung air device: Typically deep lung devices are required for all DWI second offenders during probation. Suspension of license: A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.
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