SELECTION OF DWI COURT DECISIONS THROUGH JUNE 2009

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1 SELECTION OF DWI COURT DECISIONS THROUGH JUNE 2009 Compiled and Edited by Janette Ansolabehere Assistant General Counsel Texas Department of Public Safety Office of General Counsel 512/ COMMENTS: The age of a case opinion does not render it more or less valid. Many older opinions are frequently cited by courts today, and are therefore included this summary. However, before relying on a particular case in court, it is good practice to check the most recent case law to be certain the court s holding has not been overruled or modified. Some cases are included specifically because they address common issues or fact situations that arise in DWI prosecutions. Cases may be found in more than one section. Some of these cases will contain a blurb; others will merely have a cite indicating that the blurb is elsewhere in the list. Many more of the cases discuss other relevant issues. Watch for NOTE comments. For example some cases will be or have been superseded by statute in some respect, but are still important because of cases already pending prior to the statute s effective date. If a case has had a petition for discretionary review granted by the Texas Court of Criminal Appeals, this will be noted in bold print. You can track the case at the court s website. Go to www. Courts.state.tx.us and click on the link for the Court of Criminal Appeals. You can also sign up for case opinion release service. It s free. You will receive an with a link to the court. All cases civil and criminal, published or unpublished are included. I have included many cases which the courts did not order published. Even though these cases may be cited only on a limited basis to a court as authority, they do represent the court s application of law to facts, and are valuable reference tools for the prosecutor, officer, or technical supervisor. Table of Contents ADMINISTRATIVE LICENSE REVOCATION HEARING ISSUES:... 2 ADMISSIBILITY AND SUFFICIENCY OF EVIDENCE (including admission of chemical test results and retrograde extrapolation):... 3 ALCOHOL CONCENTRATION AT TIME OF TEST VS. TIME OF OFFENSE:... 5 APPELLATE REVIEW (SUFFICIENCY OF EVIDENCE):... 6 BLOOD TESTS TAKEN BY HOSPITAL FOR TREATMENT PURPOSES:... 7 CHOICE OF SPECIMEN/MULTIPLE TESTS:... 8 CUSTODIAL INTERROGATION:... 8 DEFENSES:... 8 DOUBLE JEOPARDY:... 9 ELEMENTS OF DRIVING WHILE INTOXICATED: ENHANCEMENT: EXPERT WITNESSES: FIELD SOBRIETY TESTS: IMPLIED CONSENT: Unconscious or incoherent persons: Where the blood specimen can be taken: Who can take the specimen: INTOXICATION: INTOXICATION ASSAULT/MANSLAUGHTER: INTOXILYZER SCIENTIFIC BASIS, OPERATION, AND REGULATIONS: Page 1 of 30

2 Operator Certification: Observation/Waiting Period: MANDATORY BLOOD SPECIMENS: OPERATING A MOTOR VEHICLE: PORTABLE BREATH TESTING DEVICES: PEACE OFFICER JURISDICTION: PRESUMPTION OF INTOXICATION: PUBLIC PLACE: REASONABLE SUSPICION/PROBABLE CAUSE (including authority to make warrantless arrest): RECORDS OF TECHNICAL SUPERVISORY (including discovery of the records): RELEASE FROM CUSTODY FOLLOWING ARREST (HOSPITAL): REFUSAL BY OFFICER TO GIVE ALCOHOL CONCENTRATION TEST: REFUSAL BY DEFENDANT TO GIVE SPECIMEN: RIGHT TO COUNSEL/FIFTH AMENDMENT: RIGHT TO OWN BLOOD TEST: ROADSIDE QUESTIONING: ROADBLOCKS: SEARCH WARRANTS FOR BLOOD SAMPLE: STATUTORY WARNINGS: TESTIMONY OF OFFICER: TYPE OF INTOXICANT: VIDEOTAPING/RECORDING: ADMINISTRATIVE LICENSE REVOCATION HEARING ISSUES: NOTE: There are ALR cases scattered through this DWI Case List where the court s holding applies to DWI criminal cases as well as the ALR case. In general, except for issues involving SOAH rules and the standard of review, ALR cases can be equally applied to criminal situations, particularly issues concerning probable cause, reasonable suspicion, field sobriety tests, etc Texas Dep t of Pub. Safety v. Bond, 955 S.W.2d 441 (Tex. App. Fort Worth 1997, no pet.). Oral and documentary statements of arresting officer regarding what he had been told by another officer concerning her initial stop of defendant were admissible under public records exception to hearsay rule, in defendant s ALR hearing, where information was conveyed to arresting officer under duty imposed by law as to which matters there is a duty to report. (Citing Tex. R. Civ. Evid. 803(8), 902(4), currently Tex. R. Evid. 803(8), 902(4)). (Applies only in civil cases) Martin v. Texas Dep t of Pub. Safety, 964 S.W.2d 772 (Tex. App. Austin 1998, no pet.). In license suspension proceeding, Department of Public Safety did not have to present specific extrapolation evidence to connect licensee s after-the-fact breath test results with her alcohol concentration at time of her arrest, but rather, existence of unlawful alcohol concentration at time of driving could be inferred from results of breath test and officer s observations of licensee s behavior at time of arrest Texas Dep t of Pub. Safety v. Durand, 994 S.W.2d 352 (Tex. App. Austin 1999, no pet.). Credibility of affidavit by breath test technical supervisor attesting to reliability of Intoxilyzer and validity of analysis results could not be discounted on the ground that the technical supervisor was not personally present when motorist s test was administered, absent any statutory requirement for presence of technical supervisor at each particular breath test Mireles v. Texas Dep t of Pub. Safety, 9 S.W.3d 128 (Tex 1999). Although scientific extrapolation evidence, if offered, may be subject to a reliability analysis, such evidence is not required to establish the breath test's reliability, for purposes of determining whether motorist was driving while intoxicated (DWI). Breath-test results are scientific evidence that, to be proven reliable, must satisfy a three-part test: (1) the underlying Page 2 of 30

3 scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. The Legislature has statutorily recognized the scientific theory and technique behind breath tests (citing Tex. Transp. Code Ann ). This is an ALR case! Unlike the Texas Supreme Court in Mireles, the Court of Criminal Appeals held in Stewart that it does not interpret Chapter 724, Transportation Code as creating absolute admissibility of chemical test results Texas Dep t of Pub. Safety v. Butler, 110 S.W.3d 673 (Tex. App. Houston [14 th Dist.] 2003, no pet.). Defendant refused to give a breath sample after her arrested for DWI following a car accident. At her ALR hearing she argued that the evidence was insufficient to find that she had actually been intoxicated at the time she operated her vehicle because the state s evidence did not show when her accident occurred. The court concluded that the elements that DPS must prove in an ALR refusal case under TEX. TRANSP. CODE ANN. ch. 724 only require proof that the officer had probable cause to believe that the defendant was operating a motor vehicle in a public place while intoxicated. DPS was not required to proof by a preponderance of the evidence that the defendant was actually DWI, only that there was probable cause to believe the defendant was DWI Texas Dep t of Pub. Safety v. Hirschman, 169 S.W.3d 331 (Tex. App. Waco 2005, pet. denied). In an ALR refusal case, the Department was only required to prove that the officer had probable cause to believe that the defendant was operating a vehicle while intoxicated. The Department did not have to prove that the defendant was actually operating the vehicle while intoxicated. ADMISSIBILITY AND SUFFICIENCY OF EVIDENCE (including admission of chemical test results and retrograde extrapolation): 1986 Harrell v. State, 725 S.W.2d 208 (Tex. Crim. App. 1986). A showing of proper use of a reference sample satisfies first prong of the predicate for admission of breath test results (i.e., properly compounded chemicals). Accordingly, the basic predicate for admission of an Intoxilyzer result is: 1 Showing of proper use of simulator; 2 Existence of periodic supervision over the instrument and operation by one who understands the scientific theory of the instrument; and 3 proof of the result by witness qualified to interpret such result (Note: predicate also includes compliance with regulations; however, it does not become a jury issue unless evidence puts compliance with regulations at issue) State v. Sells, 798 S.W.2d 865 (Tex. App. Austin 1990, no pet.). Breath test result was suppressed because motorist s consent to breath test was not voluntary when induced by officer s misstatement of Implied Consent law. Officer was asked the consequences of refusal to which he stated that the defendant would automatically be charged and incarcerated Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Proponent of novel scientific evidence must prove to trial court, by clear and convincing evidence and outside presence of jury, that proffered evidence is relevant, and if so, the evidence should be admitted unless the court determines that the probative value of the evidence is outweighed by a factor specified in Rule 403. The Court stated that the general acceptance test of Frye v. United States is no longer the law in Texas, and laid out seven factors a trial court should consider when determining if scientific evidence is reliable. (The evidence was a DNA fingerprint ) Nottingham v. State, 908 S.W.2d 585 (Tex. App. Austin 1995, no pet.). Even though the defendant was in the hospital due to injuries resulting from driving her car into the rear of another vehicle, (1) she was arrested when police officer, pursuant to Implied Consent warning, told defendant she was under arrest for DWI; (2) police officer had probable cause to arrest defendant for DWI; and (3) admission of blood test results did not violate defendant s state constitutional right against self-incrimination Grady v. State, 962 S.W.2d 128 (Tex. App. Houston [1 st Dist.] 1998, pet. ref d). Intoxilyzer test record was not inadmissible hearsay in driving while intoxicated (DWI) prosecution. Defendant was not entitled to have jury instructed to disregard breath test results after court struck allegation that defendant had breath alcohol concentration of 0.10 because breath tests results were relevant and therefore admissible to prove defendant consumed alcohol and that it made him intoxicated Henderson v. State, 14 S.W.3d 409 (Tex. App. Austin 2000, no pet.). Succeeding technical supervisor's testimony was sufficient to establish that reference sample had been properly formulated and that breath test instrument and its operation were under supervision of one who understood scientific theory of instrument, and thus testimony was clear and convincing evidence that testing technique was properly applied in testing defendant's breath sample, even though previous technical supervisor had been in charge and prepared Page 3 of 30

4 reference sample to determine instrument was working properly when defendant was tested, where, as an expert, succeeding technical supervisor could rely on previous supervisor s records as basis for opinion that breath test instrument was working properly, and where succeeding supervisor had personal knowledge of prior supervisor s certification as technical supervisor Torres v. State, 109 S.W.3d 602 (Tex. App. Fort Worth 2003, no pet.). Defendant argued that the trial court erred allowed the blood test results into evidence because his right to confrontation was denied because the computer program in the gas chromatograph used to analyze his blood was not available for him in court to examine. The court held that a computer program is not a person and could not be called to testify as a witness; therefore Defendant s right of confrontation was not violated Quinney v. State, 99 S.W.3d 853 (Tex. App. Houston [14 th Dist.] 2003, no pet.). Defendant appealed the trial court s denial of his motion to suppress the arresting officer s testimony regarding the HGN and VGN tests performed on the Defendant as well as testimony concerning resting nystagmus. The court initially found that the trial court correctly admitted the testimony regarding the HGN test. The court held that because the state failed to establish the VGN test and the restless nystagmus phenomena were based on reliable scientific theory, the trial court erred by denying the Defendant s suppression motion. (The court ultimately found the error to be harmless and affirmed the conviction.) 2003 Mills v. State, 99 S.W.3d 200 (Tex. App. Fort Worth 2003, pet. ref d). The appellate court held that in light of the widespread use of radar devices, and the acceptance by other courts of radar, it concluded that the underlying scientific principles of radar are indisputable and valid as a matter of law. However, under Kelly, the state must still establish that the officer applied a valid technique, and that the technique was correctly applied on the occasion in question. (This case did not address the new laser-based radar) Hernandez v. State, 107 S.W.3d 41 (Tex. App. San Antonio 2003, pet. ref d). When the state charges a defendant had lost the normal use of his mental and physical faculties by means of the introduction of alcohol and/or drugs, the state is not required to prove what a defendant s normal faculties. See also Railsback v. State, 95 S.W.3d 473 (Tex. App. Houston [1 st Dist.] 2002, pet. ref d) Stewart v. State, 129 S.W. 3d 93 (Tex. Crim. App. 2004). Chemical test results are relevant without the admission of retrograde extrapolation testimony, and the results may be considered by a jury along with other evidence of intoxication in order for the jury to determine if Stewart was intoxicated at the time she operated her vehicle. The court specifically stated it was not addressing whether admission of chemical test results without the admission of retrograde extrapolation testimony is unfairly prejudicial to the defendant (Stewart did not raise a Rule 403 regarding the evidence being more prejudicial than probative). This issue was addressed later in Mechler (see supra) Stovall v. State, 140 S.W.3d 712 (Tex. App. Texarkana 2004, no pet.). The appellate court concluded that although the Court of Criminal Appeals in Emerson v. State had acknowledged the scientific reliability of the HGN test, it also ruled that HGN is subject to the Kelly and Daubert predicate for admission of scientific evidence. The appellate court concluded that likewise, the state had to meet the Kelly and Daubert predicate before introducing VGN test results. Because the trial court denied the Defendant s request for a Daubert hearing and the state did not introduce evidence relating to the issue of reliability, the state did not meet the Kelly criteria and the VGN results should not have been admitted State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005). The results of an Intoxilyzer test are undoubtedly prejudicial to the defendant; however, they are not unfairly prejudicial because the evidence relates directly to the charged offense and does not have a great potential to impress the jury in an irrational way. (The state was able to offer other probative evidence of the defendant s intoxicated condition at the time of operating the vehicle.) 2006 Reynolds v. State, 204 S.W.3d 386 (Tex. Crim. App. 2006). It is not part of the predicate for the admissibility of breath test results, including the Intoxilyzer 5000 results, that the breath test operator understands the science behind the instrument so long as the operator is properly certified under the statute to operate it. Reaffirmed Harrell v. State Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). Defendant s breath test results were 0.09 and The test was taken 75 minutes after the initial stop. Defendant argued on appeal that the breath test results should be have been suppressed as more prejudicial than probative, confusing the issues, and misleading the jury because the state was unable to offer extrapolation evidence and the test result only proved that the defendant had consumed alcohol prior to the stop. The Court of Criminal Appeals disagreed and held that the Page 4 of 30

5 results were properly admitted. A short opinion, but an excellent analysis of the issues regarding admission of breath test results which are barely above the per se level of Fischer v. State 252 S.W.3d 375 (Tex. Crim. App. 2008). An officer s recorded investigation narrative does not qualify for admission at trial as a present sense impression under TEX. R. EVID. 803(1) because it is a calculated narrative in an adversarial, investigative setting which has great potential for exaggeration or misstatement Madeley v. State, No CR, 2008 Tex. App. LEXIS 1320 (Tex. App. Austin Feb. 21, 2008, no pet.). Defendant was in a crash and was taken to the hospital. While he was lying in a hospital bed, the officer told him he was under arrest. After giving him Miranda warnings, the officer questioned the defendant. However, the interview was not recorded. Because the defendant was under arrest, his incriminating statement was not admissible because they were not recorded as required by TEX. CODE CRIM. PROC. ANN. art Muniz v. State, 264 S.W.3d 392 (Tex. App. Houston [1 st Dist.] 2008, no pet.). Blood is an item of evidence within the meaning of TEX. CODE CRIM. PROC. ANN. art (10) Russell v. State, No CR, 2009 Tex. App. LEXIS 3317 (Tex. App. Beaumont 2009, no pet.). A police officer s inventory report done by the arresting officer at the scene of the arrest is a peace officer report and therefore inadmissible at trial pursuant to TEX. R. EVID. 803(8)(B). (This is not the case with a property inventory done at the time of the booking process at the jail.) Also see specific subjects for additional cases concerning admission of evidence. ALCOHOL CONCENTRATION AT TIME OF TEST VS. TIME OF OFFENSE: 1994 Daricek v. State, 875 S.W.2d 770 (Tex. App. Austin 1994, pet. ref d). Conviction for driving while intoxicated was supported by evidence that defendant appeared intoxicated and failed field sobriety tests when stopped for speeding, by results of breath test, by expert testimony of absorption and metabolization rates of alcohol, and by evidence that no time elapsed between defendant s operation of vehicle and officer s opportunity to observe his demeanor and to administer field sobriety tests. Proof needed to show loss of faculties offense and per se offense of driving while intoxicated are not mutually exclusive; clearly test showing blood alcohol concentration of 0.10 is probative evidence of loss of faculties, and, conversely, evidence of failure to pass field sobriety tests immediately after driving vehicle tends to make it more probable that failed blood or breath test taken at later hour accurately reflected driver s condition at time of driving Owen v. State, 905 S.W.2d 434 (Tex. App. Waco 1995, pet. ref d). Results of breath test one hour after accident were sufficient evidence of alcohol concentration at time of accident to support charge defining intoxication as having alcohol concentration of 0.10 or more. Once admitted, breath test results are probative evidence of accused s condition at time of driving Martin v. Texas Dep t of Pub. Safety, 964 S.W.2d 772 (Tex. App. Austin 1997, no pet.). In license suspension proceeding, Department of Public Safety did not have to present specific extrapolation evidence to connect licensee's after-the-fact breath test results with her alcohol concentration at time of her arrest, but rather, existence of unlawful alcohol concentration at time of driving could be inferred from results of breath test and officer's observations of licensee's behavior at time of arrest. Many courts, including this one, have sustained convictions for driving while intoxicated, in which a much higher standard of proof applied, based in part on after-the-fact test results without expert extrapolation evidence. (ALR case) 1999 Mireles v. Texas Dep t of Pub. Safety, 9 S.W.3d 128 (Tex. 1999). Unextrapolated breath-test results, which do not relate alcohol concentration when motorist was tested to the point in time when motorist was driving, are sufficient to sustain an administrative license suspension for driving while intoxicated (DWI). Although scientific extrapolation evidence, if offered, may be subject to a reliability analysis, such evidence is not required to establish the breath test's reliability, for purposes of determining whether motorist was driving while intoxicated (DWI). In the criminal context, Texas courts have determined that unextrapolated breath-test results, even though obtained after a lag time between driving and administration of the test, are probative evidence for the trier of fact to consider and weigh. The Legislature has statutorily recognized the scientific theory and technique behind breath tests. (ALR case) 2001 Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001). While the science of retrograde extrapolation can be reliable in a given case, an expert s ability to apply the science and explain it with clarity to the court is a Page 5 of 30

6 paramount consideration when considering whether the evidence meets the required Kelly standard for admission of expert testimony. Besides understanding the science and being able to clearly explain it to the court, the expert must demonstrate some understanding of the difficulties associated with a retrograde extrapolation. He must demonstrate an awareness of the subtleties of the science and the risks inherent in any extrapolation. Finally, he must be able to clearly and consistently apply the science. The court held that the technical supervisor s testimony in this case did not meet the Kelly standard and should not have been admitted. In particular, the court pointed to: (1) discrepancies in the testimony, (2) the fact that only one breath test was done and it was more than two hours after the stop, and (3) the fact that the witness did not know any of Mata s personal characteristics or anything about how, when, and how much Mata had eaten and drunk the night in question. See Fulenwider v. State, No CR, 2004 Tex. App. LEXIS 6352 (Tex. App. Houston [1 st Dist.] July 15, 2004, no pet.) For good explanation of what the expert witness must show the court, and what factors the court considers when evaluating the reliability of retrograde extrapolation evidence Garcia v. State, 112 S.W.3d 839 (Tex. App. Houston [14 th Dist.] 2003, no pet.). Defendant was convicted of intoxication manslaughter. At trial, BAC results from an involuntary blood test performed two hours after the accident were admitted into evidence. Among other issues, the Defendant argued that the test results should have been suppressed because the results were unreliable without retrograde extrapolation. The court disagreed, holding that the Court of Criminal Appeals did not address the issue in Mata v. State and the court agreed with many of its sister courts that retrograde extrapolation was not required for the BAC results to be relevant. The court specifically stated that unextrapolated BAC results are probative evidence for a jury to consider in determining intoxication because they are relevant as to whether a person consumed alcohol prior to an accident Bagheri v. State, 119 S.W.3d 755 (Tex. Crim. App. 2003). The court found that the trial court improperly admitted the state expert s testimony regarding retrograde extrapolation because the state did not provide a sufficient showing of the scientific reliability of the testimony under Kelly and Daubert, and state conceded error (agreed that the trial court had erred admitting the testimony). The state argued, however, that the conviction could be sustained on either of the per se definition of intoxication or on the loss of faculties definition of intoxication. (The general verdict form did not require the jury to indicate on which definition of intoxication they had convicted Bagheri, but merely asked the jury to decide whether or not Bagheri had been operating motor vehicle in a public place while intoxicated.) The court noted that the definitions of intoxication in TEX PENAL CODE ANN are alternate means by which the state may prove intoxication, rather than alternate means of committing the offense. The conduct prohibited by the Penal Code is the act of operating a motor vehicle while in a state of intoxication regardless of which definition the state chooses to prove the offense. The court agreed with the court of appeals that because there was no way of knowing whether the jury had convicted Bagheri under the impairment theory rather than the per se theory, the court could not reasonably determine that the improper admission of the retrograde extrapolation testimony did not influence the jury s verdict and therefore, admission of the testimony was harmful. See Bhakta v. State, 124 S.W.3d 738 (Tex. App. Houston [1 st Dist.] 2003, pet. dism d) for the court s analysis of why the technical supervisor met the Kelly standard for demonstrating the reliability of his testimony on retrograde extrapolation. APPELLATE REVIEW (SUFFICIENCY OF EVIDENCE): NOTE: I have omitted cases from this revision that were released prior to Geesa v. State which struck down the reasonable alternative hypothesis standard of review. Please be aware that defense attorneys may raise the reasonable alternative hypothesis theory both at trial and on appeal Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Court struck down the analytical construct formerly used by appellate courts when reviewing the sufficiency of evidence in cases based on circumstantial evidence (courts formerly would determine whether circumstantial evidence excluded every reasonable hypothesis other than guilt of the defendant). NOTE: The Texas Court of Criminal Appeals later overruled one part of Geesa which had required the trial court to give the jury a definition of beyond a reasonable doubt as part of the jury instructions Fogle v. State, 988 S.W.2d 891 (Tex. App. Fort Worth 1999, pet. ref d). State does not have to establish what defendant s normal use of his faculties is in order to prove that he did not have normal use of mental and physical faculties, to support conviction for driving while intoxicated (DWI) O Neal v. State, 999 S.W.2d 826 (Tex. App. Tyler 1999, no pet.). The fact that a defendant has been given Miranda warnings does not eliminate the statutory requirement that an accused s oral statement given during Page 6 of 30

7 custodial interrogation be electronically recorded in order to be admissible against the accused. (TEX. CODE CRIM. PROC. ANN. art , 3(a)(1)) Purvis v. State, 4 S.W.3d 118 (Tex. App. Waco 1999, no pet.). Evidence corroborating defendant s extrajudicial confession need not be sufficient by itself to prove the offense; rather, all that is required is some evidence which renders the commission of the offense more probable that it would be without the evidence. Defendant s admission to police that she was driving the vehicle that crashed into a fence and that she had consumed alcohol just before the accident were sufficiently corroborated to support her conviction for DWI by witness testimony that he found defendant alone and passed out in her car with lights on and doors shut, after it appeared car had gone off the road, and defendant smelled strongly of alcohol and appeared very intoxicated when she regained consciousness Chaloupka v. State, 20 S.W.3d 172 (Tex. App. Texarkana 2000, pet. ref d). When reviewing a challenge to the legal sufficiency of the evidence, the appellate court is not required to rule out reasonable hypotheses; rather, the court must apply the standard legal sufficiency analysis: whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. BLOOD TESTS TAKEN BY HOSPITAL FOR TREATMENT PURPOSES: NOTE: Many of these cases were issued prior to the effective date of HIPPA (the Health Insurance Portability and Protection Act) by Congress. This act has rules restrict access by a prosecutor of peace officer to medical records held by a hospital or physician. They can only be accessed with the consent of the patient, with a grand jury subpoena under particular circumstances, or by an evidentiary search warrant under TEX. CODE CRIM. PROC. ANN. art (10) State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997). Government s acquisition of written report regarding blood drawn from defendant by hospital for medical purposes following traffic accident did not infringe on societal-recognized expectation of privacy for Fourth Amendment purposes. Rule eliminating physician/patient privilege in criminal proceedings was not overturned by Emergency Medical Services Act. NOTE: This case should be considered as modified by the federal HIPPA law which preempts conflicting state law Spebar v. State, 121 S.W.3d 61 (Tex. App. San Antonio 2003, no pet.). The Defendant had refused the Trooper s request for a blood sample after he read the statutory warnings to Defendant. The Trooper left the hospital and sometime later hospital personnel drew Defendant s blood for medical purposes. Defendant s wife had signed the consent for treatment form; Defendant claimed he never gave her permission to do so. The Trooper later obtained the test results with a subpoena duces tecum. Defendant argued that the taking of his blood was an illegal assault. The court found that the blood was drawn by the hospital as part of emergency medical treatment, and not at the request of the state. Therefore, the trial court did not abuse its discretion when it found that the sample was legally obtained and not an assault Mayfield v. State, 124 S.W.3d 377 (Tex. App. Dallas 2003, pet. ref d). Following an accident, Defendant was transported to a hospital for treatment. The investigating officer requested a sample of Defendant s blood but Defendant refused. The officer did not ask the hospital to take a sample. The attending physician ordered a blood sample drawn and tested as part of Defendant s medical treatment. Later the results of the test were obtained by grand jury subpoena. Defendant argued that the test results were illegally obtained because he had not consented to the hospital drawing the sample and the hospital violated TEX. PENAL CODE ANN (a)(3) (offensive or provocative contact). The court found that Defendant knew the blood was drawn for medical treatment, and while he did not sign a consent form, there was no evidence that he objected. Therefore, the sample was lawfully obtained and the state could introduce the results into evidence Murray v. State, 245 S.W.3d 37 (Tex. App. Austin 2007, pet. ref d). Officer lawfully obtained the results of a test of defendant s blood performed by hospital staff by means of a grand jury subpoena. HIPAA provides for disclosure of private medical information otherwise protected by HIPAA without a patient s consent for law enforcement purposes pursuant to a grand jury subpoena. See also Jacques v. State, No CR, 2006 Tex. App. LEXIS (Tex. App. Texarkana Dec. 7, 2006, no pet.) (holding that hospital personnel did not violate HIPAA when the informed the officers of the defendant s blood test results without the defendant s consent because HIPAA has an exception which permits an emergency medical care provider to disclose medical information if necessary to alert law enforcement to the commission and nature of a crime, in this case, DWI.) Page 7 of 30

8 CHOICE OF SPECIMEN/MULTIPLE TESTS: 1987 Davis v. Texas Dep t of Pub. Safety, 741 S.W.2d 616 (Tex. App. Dallas 1987, no pet.). Defendant s refusal to submit to a breath test constituted a refusal even though the defendant offered to submit a blood sample and was denied by the officer. The officer has the sole right to choose which type of sample to request Drapkin v. State, 781 S.W.2d 710 (Tex. App. Texarkana 1989, pet. ref d). Refusal of police to allow defendant a blood test rather than the Intoxilyzer test did not violate due process State v. Neel, 808 S.W.2d 575 (Tex. App. Tyler 1991, no pet.). Implied consent statute authorizes the police officer to make choice as to whether motorist will give specimen of breath or blood State v. Gonzales, 850 S.W.2d 672 (Tex. App. San Antonio 1993, pet. ref d). When the defendant was not able to give a valid breath specimen due to severe asthma, the officer could ask the defendant for a blood specimen and indicate that the consequences for refusal stated in the DIC-24 would also apply to the blood test See Texas Dep t of Pub. Safety v. Bond, supra Kerr v. Texas Dep t of Pub. Safety, 973 S.W.2d 732 (Tex. App. Texarkana 1998, no pet.). The one or more language of TEX. TRANSP. CODE ANN and gives clear notice to a subject that refusal to provide a specimen when requested to do so an officer will result in a DL suspension Coggins v. State, 160 S.W.3d 177 (Tex. App. Texarkana 2005, n. pet. h.). The statute does not require an officer to allow the person to choose which method he or she wants to use. Rather, Section (c) provides that the officer is to decide what specimen is to be taken State v. Neesley, 239 S.W.3d 780 (Tex. Crim. App. 2007). The state is entitled to one useable specimen under TEX. TRANSP. CODE ANN (b). Under the language of Section (b) one and only one specimen may be taken, but specimen means a useable sample which yields a valid result. CUSTODIAL INTERROGATION: 1995 State v. Subke, 918 S.W.2d 11 (Tex. App. Dallas 1995, pet. ref d). When an officer gives Miranda warnings to a suspect, the officer must use the precise wording of the warnings. In this case, the officer told the defendant that any statement he made could be used against the suspect at trial instead of in court, which made the statements subsequently given by the defendant inadmissible Alford v. State, 22 S.W.3d 669 (Tex. App. Fort Worth 2000, pet. ref d). After defendant exhibited signs of intoxication and performing poorly on field sobriety tests, the officer arrested defendant for DWI and handcuffed him. A second officer subsequently arrived and proceeded to question defendant about whether he had been drinking. The court held that because the defendant was in custody when the second officer questioned him, the defendant s response (six beers) was inadmissible. Apparently, the second officer did not following the requirements of Article 38.23, Texas Code of Criminal Procedure (taped with administration of the Miranda warnings and suspect s waiver on the tape prior to questioning.) DEFENSES: 1986 McKinnon v. State, 709 S.W.2d 805 (Tex. App. Fort Worth 1986, no pet.). Evidence was not sufficient to find involuntary intoxication as a defense to charge of DWI when the only testimony offered was that of defendant that she had blacked out Moncivais v. State, No CR, 2002 Tex. App. LEXIS 4758 (Tex. App. San Antonio July 3, 2002, no pet.). Defendant got into a fight with her estranged husband and couldn t stop her nose from bleeding. When the couple arrived at the husband s sister s home where she had left her car, a further altercation ensued. Her estranged husband refused her request to leave the children with his sister for the night, so deciding she had no other choice, Defendant drove home with the estranged husband following her. She was topped and arrested for DWI, and plead the general defense of necessity at the trial. The court found that the trial court had correctly refused to submit the issue of necessity to the jury because the Defendant denied being intoxicated. In order to claim the defense of necessity, the Defendant must first acknowledge commission of the underlying criminal offense. Page 8 of 30

9 2004 Nelson v. State, 149 S.W.3d 206 (Tex. App. Fort Worth 2004, no pet.). After loading up on a raft of pain medication and muscle relaxers for back pain, Defendant went for a drive. He was stopped by officers for erratic driving and subsequently arrested for DWI. At trial, the Defendant requested jury instructions on automatism and medically-induced involuntary intoxication which the trial court denied. The appellate court found that involuntary intoxication by prescription medications occurs only if the individual had no knowledge of possible intoxicating side effects of the drug, since independent judgment is exercised in taking the drug as a medicine, not an intoxicant. The defense, however, does not apply to person who are unconscious or semi-conscious, or as here, where the defendant s mental state is not an element of the alleged offense. DWI does not require a specific mental state it is a conduct-oriented offense. Defendant voluntarily took the medication. The voluntary taking of prescription drugs which impair mental or physical faculties is not a defense to DWI Texas Dep t of Pub. Safety v. Moore, No CV, 2004 Tex. App. LEXIS 4401 (Tex. App. Houston [1 st Dist.] May 13, 2004, no pet.). Defendant had called his wife to come to his sister s mobile home to give him a ride to their home. When the wife arrived, she saw guns flashing and persons using scissors as a weapon. She testified that someone was firing a weapon. The Defendant got into the truck and left the scene while his wife remained and called police. Officers arrived and began an investigation. While speaking to Defendant s wife, they saw a pickup truck driving through the mobile home park at a high rate of speed. Defendant s wife identified him as the driver of the pickup truck. When he stopped and the officers approached him, they observed numerous indicators of intoxication, and arrested him for DWI. At the ALR hearing, Defendant argued that the necessity defense applied because he had to commit the criminal conduct in order to avoid imminent harm. The ALJ rejected the defense. The appellate court agreed, finding that when the officers saw Defendant, he was returning to the scene of the confrontation. (The court expressed no opinion on his driving away from the scene initially). By returning when it was safe to do so (the police were there), driving while intoxicated (the criminal conduct) was no longer necessary to avoid imminent harm and the necessity defense evaporated. DOUBLE JEOPARDY: 1992 Cooper v. State, 828 S.W.2d 565 (Tex. App. Houston [14 th Dist.] 1992, no pet.). Prosecution of defendant for driving while intoxicated was not barred by double jeopardy even though defendant had previous plead guilty to failure to drive in a single marked lane and disregarding a police officer arising out of same incident; traffic offenses were not lessor included offenses of driving while intoxicated and state agreed that it would not prove driving while intoxicated by use of previously prosecuted conduct. NOTE: Officers, do be careful about charging the DWI defendant with another offense such as speeding, running red light, etc. Check with your prosecutor regarding his or her wishes in this matter Parrish v. State, 889 S.W.2d 658 (Tex. App. Houston [14 th Dist.] 1994, pet. ref d). Texas double jeopardy provision does not bar defendant s DWI trial as successive prosecution for same offense after she plead nolo contendere to speeding charge. See note under Cooper v. State Ex Parte Tharp, 935 S.W.2d 157 (Tex. Crim. App. 1996). Suspension of driver s license pursuant to administrative revocation statute does not constitute punishment for same offense so as to preclude, on double jeopardy grounds, subsequent prosecution of driver for driving while intoxicated; sixty-day license suspension is remedial, not punishment, given its relatively mild nature Reynolds v. State, 4 S.W.3d 13 (Tex. Crim. App. 1999). Department of Public Safety and district attorney are not the same parties for collateral estoppel purposes and thus ruling adverse to Department in prior administrative proceeding for revocation of driver s license does not collaterally estop district attorney from litigating same issues in subsequent criminal prosecution, and (2) collateral estoppel component of federal constitutional double jeopardy jurisprudence does not prohibit statute declaring that administrative decision on whether to revoke driver s license does not preclude litigation of similar facts in criminal prosecution Findlay v. State, 9 S.W.3d 397 (Tex. App. Houston [14 th Dist.] 1999, no pet.). Legislature s express choice to provide that driving under the influence of alcohol by a minor (DUI) is not a lesser included offense of driving while intoxicated (DWI) presupposes that a minor can be convicted under the DWI statute Page 9 of 30

10 ELEMENTS OF DRIVING WHILE INTOXICATED: 2002 Fonseca v. State, No CR, 2002 Tex. App. LEXIS 2779 (Tex. App. Corpus Christi April 18, 2002, no pet.). Public Intoxication is not a lesser included offense of Driving While Intoxicated, citing TEX. PENAL CODE ANN (d). The court also stated that AG Op. MW-197 (1980) was invalidated by the September 1, 1994, effective date of Section Strong v. State, 87 S.W.3d 206 (Tex. App. Dallas 2002, no pet.). The court held that there is no offense of attempt to operate a motor vehicle in a public place while intoxicated, because DWI is a strict liability offense which does not include a mental state element. The court concluded that the legislature did not intend to create an attempted DWI offense when it moved the DWI provisions from civil statutes to the Penal Code because it failed to include a mental state element in the offense Rodriguez v. State, 137 S.W.3d 758 (Tex. App. Houston [1 st Dist.] 2004, no pet.). Defendant was arrested following an accident for DWI and endangering a child (offense was committed prior to enactment of TEX. PENAL CODE ANN ). The defendant argued that because the indictment identified the endangered child as Alexander Rodriguez and there was no evidence at trial that an Alexander Rodriguez was ever at or near the scene of the accident or in Defendant s car, the state failed to prove that he had endangered a child. The court held that a victim s name is not a statutory element of the criminal offense. The fact that the state did not prove the victim s name exactly as alleged in the indictment does not make the evidence insufficient to support Defendant s conviction; all the state had to show was that the Defendant endangered the young victim by driving while intoxicated to prove the elements of endangerment of a child. (The court also found that the Defendant had placed the child in imminent danger of bodily harm by driving while intoxicated with the child in the vehicle. ENHANCEMENT: 2006 Bell v. State, 201 S.W.3d 708 (Tex. Crim. App. 2006). A prior DWI conviction in federal court under the federal Assimilative Crimes Act (18 U.S.C. 13) for a violation of Section is a conviction for an offense under Section 49.04, Texas Penal Code for purposes enhancement under Section 49.09, Texas Penal Code. EXPERT WITNESSES: 1993 Daubert v. Merrll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Federal Rules of Evidence superseded Frye general acceptance test for admissibility of scientific evidence. Basic standard of relevance under Federal Rules of Evidence is a liberal one. Trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. NOTE: This case has, to a degree, been superseded by Rule 702, but the principles laid out by the court are still applied in many states including Texas. However, Kelly v. State is the controlling law regarding admissibility of expert testimony in Texas state courts Hartman v. Texas, 946 S.W.2d 60 (Tex. Crim. App. 1997). Scientific evidence must be sufficiently reliable and relevant to help jury in reaching accurate results. Therefore, the standard for admission of such evidence set out in Kelly v. State is not limited to novel scientific evidence, but rather, applies to all scientific evidence Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999). The trial court s gatekeeping function under Federal Rule of Evidence 702 applies to all expert testimony not just scientific testimony. (note: Texas Rule of Evidence 702 is patterned after Federal Rule of Evidence 702 and is similarly construed by Texas courts) Henderson v. State, 14 S.W.3d 409 (Tex. App. Austin 2000, no pet.). Succeeding technical supervisor's testimony was sufficient to establish that reference sample had been properly formulated and that breath test instrument and its operation were under supervision of one who understood scientific theory of instrument, and thus testimony was clear and convincing evidence that testing technique was properly applied in testing defendant's breath sample, even though previous technical supervisor had been in charge and prepared reference sample to determine instrument was working properly when defendant was tested, where, as an expert, succeeding technical supervisor could rely on previous supervisor s records as basis for opinion that breath test instrument was working properly, and where succeeding supervisor had personal knowledge of prior supervisor s certification as technical supervisor See cases under ADMISSIBILITY AND SUFFICIENCY OF EVIDENCE. Page 10 of 30

11 FIELD SOBRIETY TESTS: 1994 Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994). The Court held that: (1) it would take judicial notice of the reliability of both theory underlying horizontal gaze nystagmus (HGN) test and its technique for purpose of determining whether testimony regarding HGN test was admissible as expert testimony; (2) it would not take judicial notice that HGN technique was a reliable indicator of a precise blood alcohol content (BAC) based on angle of onset of nystagmus; and (3) testimony by police officer certified to conduct HGN test was admissible Kerr v. State, 921 S.W.2d 498 (Tex. App. Fort Worth 1996, no pet.), cert. denied, 522 U.S (1998). To testify concerning the results of the HGN test, the officer must be qualified as an expert which is satisfied by proof that the officer has received practitioner certification by the State of Texas to administer the HGN, citing Emerson v. State.. However, the court did not interpret Emerson to require that the expert be certified by the State of Texas before his testimony on the subject of the HGN test is admissible in court. Rather the court decides whether a particular witness qualifies as an expert, and it has broad discretion in this area. The court pointed to the trooper s certification from a NHTSA approved course as well as a proficiency certificate from TCLEOSE Gassaway v. State, 957 S.W.2d 48 (Tex. Crim. App. 1997). A recitation of the alphabet and counting backwards are not testimonial in nature because these communications are physical evidence of the functioning of appellant's mental and physical faculties. The performance of these sobriety tests shows the condition of a suspect's body. Implicitly overruled Vickers v. State, 878 S.W.2d 329 (Tex. App. Fort Worth 1994, pet. ref d) Hisquierdo v. State, No CR, 2000 Tex. App. LEXIS 7041 (Tex. App. Houston [14 th Dist.] Oct. 19, 2000, pet. ref d). (1) Though no field sobriety tests were performed on defendant, in light of other evidence of defendant s severe intoxication, compromised motor skills, and belligerence, the officer provided an acceptable reason for not doing any tests. Further, even though from an evidentiary standpoint it would have been the better practice to request a field sobriety test, the evidence indicates that defendant, in his hostile and uncooperative state, would have almost surely refused to take one Webster v. State, 26 S.W.3d 717 (Tex. App. Waco 2000, pet. ref d). Officer s testimony that he screened defendant for other potential causes of nystagmus as he was conducting the HGN test, rather than prior to the test, satisfied the requisite testing procedure set forth in manual published by the National Highway Traffic Safety Administration for detecting whether defendant was driving while intoxicated State v. Garrett, 22 S.W.3d 650 (Tex. App. Austin 2000, no pet.). The trial court granted the defendant s motion to suppress the evidence in his DWI case on the basis that that the classic signs of intoxication that would be expected in a DWI arrest were not present in the defendant s case. The appellate court reversed, noting that many of these factors, such as the defendant s performance on field sobriety tests, were absent because the defendant refused to perform the tests. While only a part of the totality of the circumstances, officers may reasonable consider a defendant s refusal to perform field sobriety tests as part of the totality of circumstances providing officers with probable cause to arrest. See also Dawkins v. State, 822 S.W.2d 668 (Tex. App. Waco 1991, pet. ref d); Barraza v. State, 773 S.W.2d 379 (Tex. App. Corpus Christi 1987), aff d 790 S.W.2d 654 (Tex. Crim, app. 1990) Smith v. State, 65 S.W.3d 332 (Tex. App. Waco 2001, n. pet. h.). Emerson v. State does not require that an expert must be certified by the State of Texas before his testimony on the subject of the HGN test will be admissible. The testifying officer testified about his extensive training in a course approved by the National Highway and Traffic Safety Administration as well as additional courses. Cited Kerr v. State. This holding has been followed by several other courts of appeal McRae v. State, 152 S.W.3d 739 (Tex. App. Houston [1 st Dist.] 2004, pet ref d.). Defendant argued that the court improperly admitted the officer s testimony regarding the HGN and one-leg stand test because the tests were improperly administered (citing TEX. R. EVID. 702). After analyzing the NHTSA DWI Detection Manual the court concluded that slight variations in the administration of the HGN test do not render the evidence inadmissible or unreliable, but may affect the weight the jury gives to the testimony. (In this case, the officer made more than slight variations00he omitted entire parts of the test. The court ruled that the test was invalid, and the results had been improperly admitted into evidence by the trial court. However, the court also ruled the error was harmless due to the amount of other admissible evidence proving Defendant was DWI). The court also held that an officer is not testifying as an expert witness regarding field sobriety tests, rather is testifying as a lay witness. But see Horn v. State, 185 F. Supp. 2d 530 (D. Md. 2002) (testimony concerning one- Page 11 of 30

12 leg stand test is admissible only if it meets the Kelly v. State criteria for expert testimony) cited by McRae and interesting because at Maryland Federal District Court cited a Texas State case Reynolds v. State 163 S.W.3d 808 (Tex. App. Amarillo 2005, affirmed on other grounds 204 S.W.3d 386 (Tex. Crim. App. 2006). An officer s slight deviation from the recommendations the DWI Detection Manual when administering an HGN test did not invalidate the results other indicating that the defendant had been driving while intoxicated. (Officer administered the smooth pursuit portion in 11 seconds rather than the recommended 16 sections, etc.). The court found that the times given in the manual are only approximations of the time required to properly conduct the tests. However, the court did note that the officer s omission of an instruction in the one leg stand should have rendered the result inadmissible, but found the error harmless. See also Compton v. State, 120 S.E.3d 375 (Tex. App. Houston [1 st Dist.] 2003, pet. ref d) State v. Nelson, 228 S.W.3d 899 (Tex. App. Austin 2007, no pet.). An officer arrested defendant for DWI (drugs). The court found that the officer did not have probable cause to arrest defendant because: the officer was not qualified to administer any of the three standardized field sobriety tests and administered the tests improperly; the officer was not a DRE and had not training in drug recognition; and failed to turn off take down lights which were shining in the eyes of the defendant during the interview and the HGN test Maxwell v. State, 253 S.W.3d 309 (Tex. App. Fort Worth 2008, pet. ref d). An officer may consider the fact that a suspect refuses to perform field sobriety tests when deciding whether probable cause exists to arrest the suspect for DWI. IMPLIED CONSENT: 1997 Texas Dep t of Pub. Safety v. Watson, 945 S.W.2d 262 (Tex. App. Houston [1 st Dist.] 1997, no pet.). Implied Consent law applies post-arrest, and one or more specimens may be requested and taken. Officer used portable breath testing device on defendant as an indicator of intoxication; however, even if the PBT constituted the giving of a specimen under the Implied Consent law (it doesn t), defendant could not refuse a second specimen under Chapter 724 without the attendant risk of a driver license suspension. (ALR case) 1997 Texas Dep t of Pub. Safety v. Bond, 955 S.W.2d 441 (Tex. App. Fort Worth 1997, no pet.). Defendant did not provide breath specimen as required under Implied Consent statute by complying officer s pre-arrest roadside request to submit to a portable Intoximeter breath test where test was one of several field sobriety tests given by officer to defendant, and was used merely as an indicator of intoxication for development of probable cause to arrest defendant for DWI, not as an indicator of actual alcohol concentration. (ALR case) 1998 Kerr v. Texas Dep t of Pub. Safety, 973 S.W.2d 732 (Tex. App. Texarkana 1998, no pet.). For the provisions of Tex. Transp. Code ch. 724 (Implied Consent statute) to apply, the driver must be under arrest for an offense involving operation of a motor vehicle. (Also applies to operating a watercraft while intoxicated). (ALR case) 1998 Combest v. State, 981 S.W.2d 958 (Tex. App. Austin 1999, pet. ref d). Where defendant was not under arrest when he gave blood specimen at officer s request, statutory Implied Consent provision for taking blood specimen was not applicable Harrison v. State, 205 S.W.3d 549 (Tex. Crim. App. 2006). Defendant consented to give a blood specimen after her arrest for DWI. However, despite repeated needle sticks the nurse was unable to get the specimen due to collapsing veins. The nurse was going to try the defendant s foot when the office asked her if she was willing to give a urine sample. The defendant consented. She moved to suppress the test result on the ground that she would not have consented if she had known that her DL would not have been suspended if she had refused. The Court of Criminal Appeals held that defendant consented voluntarily to give the urine specimen, noting that the officer did not misinform her of the consequences since she never withdrew her initial consent State v. Amaya, 221 S.W.3d 797 (Tex. App. Fort Worth 2007, pet. ref d). Because Section , Texas Transportation Code provides that a person arrested for DWI is deemed to have given his consent to the taking of a breath or blood sample, a statutory presumption of consent exists and the defendant bears the initial burden at the suppression hearing to show that evidence exists rebutting the statutory presumption that he voluntarily consented to submit a breath specimen. Page 12 of 30

13 Unconscious or incoherent persons: 1984 Pesina v. State, 676 S.W.3d 122 (Tex. Crim. App. 1984). Blood sample collected from an DWI suspect at the request of an officer is admissible at trial because the suspect was unconscious at the time and exigent circumstances justified the taking of the sample (alcohol metabolizes and is evanescent evidence disappears over time) Knisley v. State, 81 S.W.3d 478 (Tex. App. Dallas 2002). Knisley was involved in a serious accident and the officers had probable cause to believe he had been driving while intoxicated. Knisley to be unconscious and was unresponsive to the officer who attempted to speak to him. The officer ordered the nurse to take a blood specimen under the authority of TEX. TRANSP. CODE ANN (a). The court found that the Implied Consent statute only applies to persons who are under arrest for an offense under Ch. 49, Penal Code. The court concluded that Knisley had not been arrested by the officer, and therefore Section (a) did not apply. However, the court affirmed the conviction, finding that the taking of the blood specimen was lawful because the warrantless taking of a blood sample is not an unreasonable search and seizure so long as probable cause to arrest exists, the method of extraction is reasonable, and there are exigent circumstances. The court concluded that the officer did have probable cause that Knisley had driven while intoxicated; therefore the specimen was lawfully obtained Blumenstetter v. State, 135 S.W.3d 234 (Tex. App. Texarkana 2004, no pet.). The taking of a blood sample is a search and seizure under both the federal and Texas constitutions. However, when officers have probable cause, exigent circumstances, and a reasonable method of extraction, taking a blood sample without a warrant or consent is not an unreasonable search and seizure, and does not violate the Fourth Amendment. Where the blood specimen can be taken: 1991 Adams v. State, 808 S.W.2d 250 (Tex. App. Houston [1 st Dist.] 1991, no pet.). TEX. TRANSP. CODE ANN requirement that a blood specimen be taken in a sanitary place is satisfied if the state proves that the place is subject to periodic inspections. The state does not have to show that the place was inspected on the date the blood was drawn. Moreover, the judge could have taken notice that the hospital was a sanitary place, thus satisfying that part of the predicate for admission of the blood test results. Who can take the specimen: 2000 State v. Laird, 38 S.W.3d 707 (Tex. App. Austin 2000, pet. ref d). The results of defendant s blood sample are inadmissible under TEX. CODE CRIM. PROC. ANN. art (a) because it was drawn in violation of section of the Transportation Code. Paramedic and emergency medical technicians are not considered a qualified technician under Section which specifically bars these individuals from drawing a blood specimen taken under the Implied Consent law Blackwell v. State, No CR, 2005 Tex. App. LEXIS 8816 (Tex. App. Austin Mar. 10, 2005, no pet.). The restrictions in TEX. TRANSP. CODE ANN regarding which persons can take a blood specimen at the request or order of a peace officer do not apply when the suspect is not under arrest and the blood draw is not done at the request of a peace officer State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006). While defendant was in the emergency room following a crash, a hospital phlebotomist drew defendant s blood for medical treatment purposes. Soon after, an officer arrived and asked defendant for a blood specimen and she refused. Later the DA obtained defendant s hospital blood test results by grand jury subpoena. Defendant argued that he phlebotomist drew the blood without her consent and therefore the results should be suppressed. The Court concluded that the defendant had consented by mere acquiescence, but since defendant had not expressly refused, but cooperated with the phlebotomist, she did voluntarily consent to the blood draw. INTOXICATION: 1987 Massie v. State, 744 S.W.2d 314 (Tex. App. Dallas 1988, pet. ref d). Proof that the defendant has lost the normal use of his faculties is not required. Loss of normal use refers to the normal non-intoxicated person, not to a particular individual. This is a heavily cited case. Page 13 of 30

14 INTOXICATION ASSAULT/MANSLAUGHTER: 1994 Gabryelski v. State, 885 S.W.2d 203 (Tex. App. San Antonio 1994, no pet.). Fact that victim was also intoxicated was not a concurrent cause superseding defendant s conduct in causing victim s death where evidence showed that victim was standing next to open door of his car at the time of the impact and testimony established that is not unusual for person involved in automobile accidents to get out of their cars at the scene (victim involved in accident just prior to being hit by defendant) Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007). A felony murder charged based on an underlying felony DWI does not require a culpable mental state because DWI does not require a culpable mental state. The fact that TEX. PENAL CODE ANN (b)(3) dispenses with a culpable mental state is consistent with the historical purpose of the felony murder rule, the essence of which is to make a person guilty of an unintentional murder when he causes another person s death during the commission of some type of felony. See also Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) (Contains an excellent discussion of felony murder based on felony DWI offense as well as a good discussion of when and how to use extrapolation.) INTOXILYZER SCIENTIFIC BASIS, OPERATION, AND REGULATIONS: 1984 California v. Trombetta, 467 U.S. 479 (1984). Preservation of breath sample is not required by due process Dahl v. State, 707 S.W.2d 694 (Tex. App. Austin 1986, pet. ref d). Although Intoxilyzer reading may not be reported directly in terms of breath, i.e., the number of grams of alcohol per 210 liters of breath, it does not change the underlying premise of the instrument. It incorporates the 1/2100 blood/breath ratio. (Excellent summary of scientific basis of breath test) State v. Krager, 810 S.W.2d 450 (Tex. App. San Antonio 1991, pet. ref d). DPS regulations do not require an agency to apply for re-certification of its breath testing program when the agency changes its breath testing equipment from one approved instrument to another approved instrument, unless the agency s program has been revoked Ponce v. State, 828 S.W.2d 50 (Tex. App. Houston [1 st Dist.] 1991, pet. ref d). Test records and other reports used to establish that the Intoxilyzer which tested the defendant s breath samples for alcohol concentration were admissible under TEX. R. EVID. 803(6) because they are not matters observed by law enforcement personnel. But see Melendez-Diaz v. Massachusetts, No , 2009 U.S. LEXIS 4734 (Nov. 10, 2008) Coward v. State, 993 S.W.2d 307 (Tex. App. San Antonio 1999, no pet.). Modification of Intoxilyzer did not prevent admission of breath test results in light of State s proof that modification did not compromise the instrument s accuracy and validity; state established that instrument was periodically monitored for accuracy, was inspected prior to defendant s test and proven working properly, and was found to be accurate by simulated reference test immediately prior to defendant s test Gamez v. State, No CR, 2003 Tex. App. LEXIS 546 (Tex. App. San Antonio Jan. 22, 2003, no pet.). Defendant was arrested for DWI and submitted to a breath test. At trial and on appeal, Defendant argued that his test results should have been suppressed because they were not valid. Defendant argued that because the state did not prove that the temperature of the Intoxilyzer was correct at the time of Defendant s test, nor any evidence of Defendant s body temperature. Because a person s body temperature, if above normal, can cause erroneous BAC results, the officer should have taken Defendant s temperature before administering the test. The state s expert had testified that if a person had a body temperature of 103 degrees or higher, the test would overstate the person s alcohol concentration. The court rejected Defendant s argument, finding that the evidence showed that the state had complied with the Texas Breath Alcohol Testing Regulations which do not require the operator to take the subject s temperature to ensure the subject is not suffering from a high fever. The court also found that the state had proved that the simulator was operating normally (34 degrees ±.2 degrees) at the time of the test because the Technical Supervisor had testified that he had checked the reference sample s operating temperature the day before and the day after defendant s breath test State v. Garza, No CR, 2005 Tex. App. LEXIS 7351 (Tex.. App. San Antonio Sept. 7, 2005, no pet.). The court upheld the suppression of the breath test results on the basis that that the state failed to prove that the Intoxilyzer s reference sample was operating at a known temperature at the time of the breath test. Page 14 of 30

15 The Technical Supervisor had testified that he had checked the reference sample temperature the week before and the week after the test, distinguishing this case from Gamez v. State, supra Melendez-Diaz v. Massachusetts, No , 2009 U.S. LEXIS 4734 (Nov. 10, 2008). Affidavits of laboratory analysts are testimonial within the meaning of Crawford v. Washington, triggering the right of the criminal defendant to confront the witness. [Note: Sixth Amendment Right of Confrontation does not apply to civil and administrative cases.] Operator Certification: 1985 Scherlie v. State, 689 S.W.2d 294 (Tex. App. Houston [1 st Dist.] 1985), aff d 715 S.W.2d 653 (Tex. Crim. App. 1986). Intoxilyzer test results are properly admitted into evidence when operator states he was properly certified as an operator on date of test, and that he followed DPS rules in giving the test Reynolds v State, 163 S.W.3d 808 (Tex. App. Amarillo 2005, no pet. h.). The breath test operator does not have to understand the scientific theory underlying the Intoxilyzer instrument. The state need only show that the instrument and the operator were under the periodic supervision of a person who does understand the scientific theory underlying the instrument (the technical supervisor). (Cited Scherlie v. State). Observation/Waiting Period: 1984 State v. Melendes, 877 S.W.2d 502 (Tex. App. San Antonio 1994, pet. ref d). The same operator is not required to observe a defendant as well as administer the breath test. (Officer, who a certified BTO, conducting the required observation and then turned the defendant over to another certified BTO to conduct the test.) 1995 State v. Moya, 877 S.W.2d 504 (Tex. App. San Antonio 1994, no pet.). A subject must be observed for at least a 15 minute period immediately preceding a breath test. No purpose is served by repeating the observation period merely because the instrument needs to rerun its internal check system for such things as check ambient conditions. The language of the Regulations suggests that the observation period and the test itself are two different things. However, while the observation time need not be repeated if a second or third test must be conducted, the subject must remain under observation until the instrument is ready to perform correctly State v. Reed, 888 S.W.2d 117 (Tex. App. San Antonio 1994, no pet.) A defendant does not have to be continuously observed for 15 minutes because the DPS breath test regulations now expressly provide that the subject need only be in the operator s continuous presence Kercho v. State, 948 S.W.2d 34 (Tex. App. Houston [14 th Dist.] 1997, pet. ref d). While the statute clearly indicates that the DPS rules must be followed when the test is administered in order to admit the results of an Intoxilyzer test at trial, it does not require that the State introduce testimony regarding the officer s compliance with each of these rules as a predicate to admissibility of the results of the Intoxilyzer test. (This is presuming that defendant has not introduced evidence that the officer did not comply with the 15 minute observation rule Adams v. State, 67 S.W.3d 450 (Tex. App. Fort Worth 2002, pet. ref d). Defendant argued that discrepancies between the interview video, the operator s notations, and the Intoxilyzer instrument clock raised a fact issue whether the operator properly complied with the 15 minute observation rule, and that the trial court erred by denying his request for a jury question. The interview room videotape time stamp showed the interview (observation period commencing) beginning at 5:23 a.m. while the operator stated on the video that the interview began at 5:27 a.m. and noted on her records that the interview ended at 5:48 a.m. On the videotape, the breath test began at 5:49 a.m., but the Intoxilyzer clock showed that the tests were administered at 5:51 a.m. and 5:53 a.m. The court found that regardless of the discrepancies, the officer s testimony and the time counter on the videotape conclusively established that the Defendant was in the operator s presence for approximately 25 minutes well beyond the 15 minute requirement. MANDATORY BLOOD SPECIMENS: 1998 Stidman v. State, 981 S.W.2d 227 (Tex. App. Houston [1 st Dist.] 1998, no pet.). Results of blood test taken without defendant's permission were admissible in prosecution for intoxication assault, where defendant was involved in car accident and arrested for driving while intoxicated, officer testified that accident victim was unresponsive and comatose before he was flown to hospital, medical personnel informed officer that victim's Page 15 of 30

16 condition was very serious and very critical, and only after defendant refused to voluntarily give breath or blood specimen did officer require defendant to have his blood drawn by emergency room nurse in hospital setting Broadnax v. State, 995 S.W.2d 900 (Tex. App. Austin 1999, no pet.). Defendant had no right to refuse to consent to provide blood sample, and officer had statutory authority to take involuntary blood sample, where officer had probable cause to arrest defendant for DWI and had decided at scene that defendant would not be released; officer reasonably believed that accident had occurred as a result of DWI offense, and officer reasonably believed that person injured in accident was likely to die Badgett v. State, 42 S.W.3d 136 (Tex. Crim. App. 2001). One of the four factors that must exist before an officer can require a driver to submit a mandatory specimen under Tex. Transp. Code Ann (b) is that the officer has a reasonable belief that the person (who has been arrested for an offense under Chapter 49) was the operator of a motor vehicle or watercraft involved in an accident which occurred as a result of the offense. In this case the officer testified that he believed that Badgett could have been at fault because Badgett was intoxicated. At the time the officer had left the scene with Badgett, the accident reconstruction team had not yet determined who was at fault in the accident. The Court held that before an officer can take a mandatory specimen under Section (b), the officer must have more evidence than the mere fact that the arrested driver was intoxicated to support a reasonable belief that the accident was a result of the driver s intoxicated condition. The Court stated that while it recognized the time strictures involved in obtaining a reliable measurement of blood alcohol level, it had to presume the Legislature also recognized this fact and chose to require a reasonable belief on the part of the officer that the accident occurred as a result of the suspected intoxication offense as a predicate factor for obtaining the mandatory specimen. NOTE to officers: If you are in this situation, try to get an evidentiary search warrant for a blood specimen from the appropriate magistrate (County Court at Law or District Court unless TEX. CODE CRIM. PROC. ANN. art (i) applies) Jackson v. State, No CR, 2009 Tex. App. LEXIS 4043 (Tex. App. El Paso June 3, 2009, no pet. h.). Graduate nurse who had been qualified by her employer hospital to draw blood was a qualified technician under Section , TEX. TRANSP. CODE ANN. OPERATING A MOTOR VEHICLE: 1987 Bucek v. State, 724 S.W.2d 129 (Tex. App. Fort Worth 1987, no pet.). A defendant s statement that he was the driver may be sufficient to prove operating the vehicle when there is other corroborating evidence Garza v. State, 846 S.W.2d 936 (Tex. App. Houston [1 st Dist.] 1993, pet. ref d). Defendant who was found sleeping in driver s seat of car with flat tire, stopped in roadway, with motor running, lights on, and gear shift in drive was driving or operating a motor vehicle within meaning of DWI statute. Still cited by appellate courts Barton v. State, 882 S.W.2d 456 (Tex. App. Dallas 1994, no pet.). Evidence is sufficient to show operation of a motor vehicle where the totality of the circumstances demonstrates that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle s use. In other words, does the totality of the circumstances show that the appellant exerted personal effort upon his vehicle in a manner shat shows intentional use of the vehicle for its intended purpose. Appellant s vehicle, with its engine idling, was standing still in the roadway protruding into an intersection controlled by a flashing yellow light, while appellant was asleep behind the wheel with his feet on the clutch and brake. When aroused by the officer, appellant immediately exerted personal effort to control his truck and affect its functioning when he engaged the clutch, changed gears, released the clutch, and then reached to start the engine which the officer had turned off. Still heavily cited Peddicord v. State, 942 S.W.2d 100 (Tex. App. Amarillo 1997, no pet.). Circumstantial evidence established that defendant operated vehicle involved in accident, thus supporting conviction for driving while intoxicated; although no witness saw defendant operate vehicle, he made statement to police officer who was assigned as accident investigator that he was the driver and, within two minutes after accident, defendant was discovered in driver s seat of vehicle. It was not required that the officer actually arrest the defendant on public intoxication charges when the officer had probable cause to arrest him for DWI. Still heavily cited Milam v. State, 976 S.W.2d 788 (Tex. App. Houston [1 st Dist.] 1998, pet. ref d). Defendant operated motor vehicle officer found defendant passed out in front seat of car with his foot on the brake, keys in the ignition, engine running, and car in gear. When officer asked defendant to put car in park, defendant put car in reverse. Page 16 of 30

17 1999 Purvis v. State, 4 S.W.3d 118 (Tex. App. Waco 1999, no pet.). Evidence corroborating defendant s extrajudicial confession need not be sufficient by itself to prove the offense; rather, all that is required is some evidence which renders the commission of the offense more probable that it would be without the evidence. Defendant s admission to police that she was driving the vehicle that crashed into a fence and that she had consumed alcohol just before the accident were sufficiently corroborated to support her conviction for DWI by witness testimony that he found defendant alone and passed out in her car with lights on and doors shut, after it appeared car had gone off the road, and defendant smelled strongly of alcohol and appeared very intoxicated when she regained consciousness Youens v. state, 988 S.W.2d 404 (Tex. App. Houston [1 st Dist.] 1999, no pet.). Court concluded that the fact that the defendant has been seated in the truck with the engine running, his statement at the scene that he had been driving the truck when the crash happened, and a statement that minutes had elapsed since the crash, provided a sufficient basis for the jury to find that defendant was driving while intoxicated Chaloupka v. State, 20 S.W.3d 172 (Tex. App. Texarkana 2000, pet. ref d). Two witnesses saw the defendant driving erratically (hit a vehicle in an adjoining lane) and then driving off at a high rate of speed. They provided the police with the vehicle s license number. Police quickly located defendant s vehicle in a rest area. Another witness in the rest area about two miles from the site of the collision saw the defendant get out of his vehicle with two beer bottles and a sack, stumble as he walked, and urinate in public. When the officer arrived, the defendant was sitting on a bench drinking beer, obviously intoxicated. After the defendant failed the SFSTs, the officer arrested him for DWI. Defendant argued that the stated could not prove that the evidence was legally sufficient to prove that he had been operating a motor vehicle while intoxicated. The court held that the evidence was legally sufficient. [Contains a good discussion of how Geesa v. State should be applied. Many of the older cases like Hanson v. State, Reddie v. State, Ford v. State were issued before the Court of Criminal Appeals dumped the reasonable alternative hypothesis standard in Geesa (1991).] 2002 Freeman v. State, 69 S.W.3d 374 (Tex. App. Dallas 2002, no pet.). The arresting officers discovered Defendant sleeping in the driver s seat of her SUV. The car s right tire was against the curb, the motor was running, the gear was in drive position, and the lights were on. When the officers awoke Defendant and instructed her to put the gear into park, turn off the motor, and open the door. Only the curb prevented the vehicle from moving. Defendant argued that she had not drove or operated the vehicle. The court stated that Texas courts have rejected the contention that the driver s personal effort must cause the vehicle to either move or not move. Rather the courts look to the totality of the circumstances to determine if the person exerted personal effort on the vehicle in a manner that shows intentional use of the vehicle for its intended purpose. According to the court, while driving does involve operation, operation does not necessarily involve driving. The court ruled that Defendant had operated the SUV Hearne v. State, 80 S.W.3d 677 (Tex. App. Houston [1 st Dist.] 2002, no pet.). The defendant argued that there was insufficient evidence he had operated his truck. The pickup truck was parked in a moving lane of traffic on a service road, his head was leaning against the driver s side window, engine was running, gearshift was in park, his feed were not touching either the brake or accelerator pedals, and officer did not see defendant to act in an attempt to control the truck. The court held that the evidence was sufficient to support a finding that the defendant had operated a motor vehicle while intoxicated Carter v. State, No CR, 2003 Tex. App. LEXIS 2499 (Tex. App. Dallas Mar. 26, 2003, no pet.). Defendant was convicted of operating a bulldozer in a public place while intoxicated. He appealed, arguing that a bulldozer is not a motor vehicle, citing TEX. TRANSP. CODE ANN (18) ( special mobile equipment designed to only incidentally move on a highway includes bulldozers), but rather should be classified as a vehicle. The court disagreed, determining that a bulldozer is a motor vehicle for purposes of DWI. Interestingly, the court did not cite the definition of motor vehicle in TEX. PENAL CODE ANN (a)(2) which is incorporated by Section 49.01(3) Yocom v. State, No CR, 2004 Tex. App. LEXIS 3195 (Tex. App. Fort Worth April 8, 2004, pet. ref d). Good discussion of what constituted operating a vehicle and what the state has to prove. The evidence at trial showed the Defendant admitted driving from a bar in Dallas where he had consumed alcohol to the parking lot where the officer found him, that he had pulled off the road because he fled sick, that he had driven badly and was afraid of getting being arrested for DWI, that he had not been in the parking lot for more than 45 minutes, that he was intoxicated, and that no alcoholic beverages were found in his vehicle. The court concluded that a rationale trier of fact (the jury) could have found beyond a reasonable doubt that the Defendant had operated his vehicle prior to the officer s arrival and that he had been intoxicated when he did so. The court also concluded that the trier of fact could have concluded that the Defendant operated his Page 17 of 30

18 vehicle in the officer s presence because he had the engine running and the truck in drive, had activated his windshield wipers, turn signal and brake lights (when the officer had told him several times to put the truck in park and roll down the windows), and had put the truck in reverse before putting it in park and rolling down the window. (The court distinguished this case from Garza v. State, 846 S.W.2d 936 (Tex. App. Houston [1 st Dist.] 1993, pet. ref d) because he did not operate the vehicle as directed by the officer unlike in Garza). NOTE: This case also contains a discussion of obtaining results of blood tests taken by a hospital for medical treatment purposes by use of a grand jury subpoena. It is a pre-hippa case. The court implies, however, that HIPPA overrules Hardy v. State.) 2005 Miller v. State, No CR, 2005 Tex. App. LEXIS 1352 (Tex. App. El Paso Feb. 17, 2003, no pet. h.). Homeowner saw Defendant pull in front of officer s home and stopped in the middle of the street with the rear end of the vehicle facing the curb and the front facing the street (six feet away). The homeowner went out to see who the driver was. When no one got out of the vehicle, the homeowner took his own truck, drove down his driveway, and shined a flashlight into the other vehicle, but didn t see anyone. The vehicle was still running. He called the police. The officers roused Defendant with difficulty, and were forced to reaching and stop the vehicle after the Defendant moved his feet and released the brake pedal. Defendant argued that he was not operating his car, but rather was parked and asleep. The court disagreed, pointing out that vehicle was blocking the road, Defendant took his foot off of the brake pedal allowing the vehicle to move, and the officer had to put the car into park Nieschwietz v State, No CR, 2006 Tex. App. LEXIS 5255 (Tex. App. San Antonio June 21, 2006, pet. ref d). Defendant claimed his statement to officer (on videotape) that he was making a turn when the other car hit him was insufficient to prove that he had been operating a motor vehicle. The court found that the defendant s admission was sufficiently corroborated by his presence at the scene, the vehicle insurance documents listing defendant as the owner of the vehicle, and the officer s stated opinion, based on his investigation, that defendant had been the driver Dornbusch v. State, 262 S.W.3d 432 (Tex. App. Fort Worth 2008, no pet.). The court found that there was sufficient evidence to show that defendant was operating his motor vehicle: found in back of parking lot with headlights on, engine running, gear in drive, radio playing, and defendant sitting in driver s seat either asleep or passed out. PORTABLE BREATH TESTING DEVICES: 1996 Fernandez v. State, 915 S.W.2d 572 (Tex. App. San Antonio 1996, no pet.). Fact that passive alcohol sensor was not certified by DPS did not render test results inadmissible, where test was not administered for purpose of analyzing alcohol concentration in defendant s breath, but rather, was given as one of several field sobriety tests Texas Dep t of Pub. Safety v. Watson, 945 S.W.2d 262 (Tex. App. Houston [1 st Dist.] 1997, no pet.). Implied Consent law applies post-arrest, and one or more specimens may be requested and taken. Officer used portable breath testing device on defendant as an indicator of intoxication; however, even if the PBT constituted the giving of a specimen under the Implied Consent law (it doesn t), defendant could not refuse a second specimen under Chapter 724 without the attendant risk of a driver license suspension Texas Dep t of Pub. Safety v. Bond, 955 S.W.2d 441 (Tex. App. Fort Worth 1997, no pet.). A preliminary breath specimen taken on an Intoximeter was one of several field sobriety tests given by the officer during his investigation of defendant for DWI Adams v. State, 156 S.W.3d 152 (Tex. App. Beaumont 2004, no pet.). Court held that an officer may not testify in trial regarding the results of the PBT which is not a certified breath test instrument. [A PBT is considered by the appellate courts as another field sobriety test. If the results indicate intoxication, the officer can testify he administered a PBT and the results were consistent with the other indicators of intoxication that the officer observed in the defendant.] PEACE OFFICER JURISDICTION: 2003 Yeager v. State, 104 S.W.3d 103 (Tex. Crim. App. 2003). A hot pursuit does not necessarily mean some element of a chase, although that is normally the case. According to the court the relevant point is whether the officer s lawfully began the pursuit based on reasonable suspicion of wrongdoing. In this case, the officers did have reasonable suspicion that the Defendant was DWI when they began following the Defendant for Page 18 of 30

19 actions he committed within the city limits. Therefore the fact that the detention occurred outside the city was not relevant because the officers were in immediate and continuous pursuit of the Defendant from the initial scene of the crime. (As a result of this case and State v. Kurtz, the Texas Legislature amended TEX. CODE CRIM. PROC. ANN. art to provide that a municipal peace officer outside his or her jurisdiction may arrest a person for any offense committed in his presence or view except that the officer may only arrest a person for a traffic offense if it is committed in the county or counties in which the municipality is located.) PRESUMPTION OF INTOXICATION: 1980 Turpin v. State, 606 S.W.2d 907 (Tex. Crim. App. 1980). In absence of statute creating presumption of sobriety based on blood alcohol concentration, such presumption does not exist as a matter of law. PUBLIC PLACE: 1988 Thibaut v. State, 782 S.W.2d 307 (Tex. App. Eastland 1989, no pet.). Parking lot of 128-unit condominium complex which was accessible to public was public place for purposes of DWI Woodruff v. State, 899 S.W.2d 443 (Tex. App. Austin 1995, pet. ref d). A military base can be a public place for purposes of the Penal Code, specifically DWI State v. Nailor, 949 S.W.2d 357 (Tex. App. San Antonio 1997, no pet.). Being intoxicated in a public place is a breach of the public peace. Hotel parking lot in which motorist was driving was a public place for purposes of DWI statute. There was undisputed evidence before trial court that parking lot was open to the public 24 hours a day and considered a public place, that the hotel garage was frequently used by persons coming downtown to dine and shop, and that the hotel advertised for and rented monthly parking permits to downtown business people. Whether a parking lot is wide open or enclosed is irrelevant to determination of whether parking lot is one to which public has access, for purposes of criminal statute defining public place; relevant inquiry is whether public can enter the premises. A place can be public for purposes of criminal statute defining public places despite requirement of entrance fee Perry v. State, 991 S.W.2d 50 (Tex. App. Fort Worth 1999, pet. ref d). For purposes of DWI statute, closed city park in which motorist was driving was a public place. Although park was closed for the night, there were not gates or barriers to prevent public from entering the park Gowans v. State, 995 S.W.2d 787 (Tex. App. Houston [1 st Dist.] 1999, pet. ref d). The fact that defendant was driving a motor vehicle on a state highway just moments before fatal accident was sufficient evidence that defendant was operating a motor vehicle in a public place as required to support defendant s conviction for intoxication manslaughter, even though victim s car was parked in a private driveway at the time of the accident Fowler v. State, 65 S.W.3d 116 (Tex. App. Amarillo 2001, no pet.). An unpaved driveway leading to a ranch house ¼ mile from the county road in an isolated, secluded part of the county was not a public place. [Note: the state lost this one because they failed to offer any evidence that the only way the defendant could have reached the private driveway was by the county road which was a public place. The defendant was so drunk that he got lost and drove down the driveway by accident, waking the homeowner at 3:00 a.m.] 2003 Shaub v. State, 99 S.W.3d 253 (Tex. App. Fort Worth 2003, no pet.). A boat dock available for use by the general public is a public place for purposes of Chapter 49. In this case, the marina was part of a public park and the public had access to the marina making it a public place Kindle v. State, No CR, 2003 Tex. App. LEXIS 9774 (Tex. App. Dallas Nov. 18, 2003, no pet.). A hotel s un-gated parking lot accessible to the public is a public place even though the hotel may legally restrict access to registered guests of the hotel or guests of the guest Cervas v. State, No CR, 2005 Tex. App. LEXIS 2736 (Tex. App. Fort Worth April 7, 2005, n. pet. h.). Defendant was discovered by officer in a car parked off of the road s shoulder, partially in a ditch. The headlights were on. The officer had responded to a report of a vehicle with a flat tire driving on railroad tracks. Defendant argued that his vehicle was not in a public place and he was inside his vehicle so he was not in a public place. The court disagreed and said that the vehicle was in a public place, he was also in a public place. Page 19 of 30

20 2007 State v. Gerstenkorn, 239 S.W.3d 357 (Tex. App. San Antonio 2007, no pet.). A gated community is a public place as defined by the Texas Penal Code. Even though the community was gated with a security guard and limited access, it is no more restrictive to access by the public than an air force base which is also a public place, citing Woodruff v. State, 899 S.W.2d 443 (Tex. App. Austin 1995, pet. ref d). REASONABLE SUSPICION/PROBABLE CAUSE (including authority to make warrantless arrest): 1979 United States v. Fossler, 597 F.2d 478 (5 th Cir. 1979). Where a defendant is arrested for the wrong offense, the arrest is nonetheless valid where the crime for which he was arrested and the crime for which there was probable cause to believe he committed are closely related and there is no proof of sham or fraud (finding the arrest for DWI valid because there was probable cause to arrest Fossler for public intoxication). (Cited by Texas courts for DWI arrests where officer did not witness defendant operating the vehicle because the officer could have lawfully arrested the defendant for public intoxication.) 1982 Warrick v. State, 634 S.W.2d 707 (Tex. Crim. App. 1982). The Fifth Circuit has recognized that where a defendant was arrested for the wrong offense, the arrest is nonetheless valid where the crime for which he was arrested and the crime for which there was probable cause to believe he had committed are closely related and there is no proof of sham or fraud. (Quoting United States v. Fossler) 1992 Viveros v. State, 828 S.W.2d 2 (Tex. Crim. App. 1992). Officers lacked reasonable suspicion to stop defendant when they observed his vehicle overtake their vehicle and then slow to a speed well below the posted speed limit and continue on at that speed for three quarters of a mile until it was stopped; while it could have been inferred that there was something out of the ordinary occurring, there was nothing that would lead a reasonable person to believe that the occupants of the vehicle were engaged in any criminal act McGuire v. State, 847 S.W.2d 684 (Tex. App. Houston [1 st Dist.] 1993, no pet.). Arrest by private citizens was lawful under TEX. CODE CRIM. PROC. ANN. art (b) because DWI is a breach of the peace Elliot v. State, 908 S.W.2d 590 (Tex. App. Austin 1995, pet ref d). Defendant s warrantless arrest for public intoxication was authorized by statute because officer may arrest offender without a warrant for any offense committed in officer s presence 1996 State v. Sailo, 910 S.W.2d 184 (Tex. App. Fort Worth 1996, pet. ref d). Although citizen-informant who reported that he had seen possible drunk driver was not known by officers, informant was sufficiently reliable to establish level of suspicion necessary to justify pulling over defendant's vehicle, where informant came forward in person to give information, and the information was neither vague as to time of criminal activity nor imprecise as to kind of crime being committed. (Officers never obtained the informant s name) 1998 Hernandez v. State, 983 S.W.2d 867 (Tex. App. Austin 1998, pet. ref d). Statute requiring operator of motor vehicle on roadway divided into marked lanes to drive as nearly as practical entirely within a single lane, and not to move from lane unless that movement can be made safely, creates only one traffic offense for moving out of marked lane when it is not safe to do so. NOTE: There have been numerous cases since Hernandez was issued that have followed or distinguished Hernandez based on the specific facts of each case. An excellent example of a case distinguishing Hernandez, see Cook v. State, 63 S.W. 3d 924 (Tex. App. Houston [14 th Dist.] 2002, pet. ref d) Davis v. State, 989 S.W.2d 859 (Tex. App. Austin 1999, pet. ref d). Broadcast of anonymous tip that vehicle was being driven recklessly and that its occupants were possibly smoking marijuana was not sufficiently corroborated to create reasonable suspicion to justify investigative stop, when tip was corroborated only as to description of vehicle and its occupants State v. Arriaga, 5 S.W.3d 804 (Tex. App. San Antonio 1999, pet. ref d). Under totality of circumstances, stated failed to present specific facts to justify stopping defendant, where officer failed to testify with any certainty to the number of times he observed defendant s vehicle drift within lane, defendant never drifted out of his lane, and officer s testimony that he stopped defendant near a nightclub at 1:50 a.m. was not presented as a basis for detention Sweeney v. State, 6 S.W.3d 670 (Tex. App. Houston [1 st Dist.] 1999, pet. ref d). Officer had reason to stop motorist, if not to assist him, then for the safety of others on the road where motorist was driving at more than Page 20 of 30