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1 Robby Chapman Program Director, TMCEC 2014 Traffic Safety Conference Learning Objectives (1) Recognize the offense of DUI and how it is different from a DWI (2) Describe the paperwork associated with the offense that a clerk may encounter in processing a case from filing through trial (3) Identify the legal consequences and statutory requirements that result from a DUI (4) Discuss why this and other alcohol offenses filed in municipal court matter Outline I. Drunk Driving II. DWI v DUI III. What is a DUI? IV. What Are You Likely to See? V. Punishment Range VI. Statutory Requirements

2 Drunk Driving Nationwide In 2012, 10,332 people - 31% of all traffic fatalities in the United States - were killed in drunk driving crashes. Source: NHTSA Texas That same year 1,296 people in Texas were killed in drunk driving crashes Source: MADD

3 Underage Drinking By age 15, half of teens have had at least one drink By age 18, more than 70% have had at least one drink Source: National Institute on Alcohol Abuse and Alcoholism Teens Driving Under the Influence of Alcohol 19% 62% 19% Makes You Better Driver Has No Effect Makes You Worse Driver Source: USA Today

4 DWI v DUI Aren t DWI and DUI the same? Driving While Intoxicated Sec , Penal Code A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place

5 DWI Elements Defendant Did Operate A Motor Vehicle In a Public Place While intoxicated Intoxication (1) Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; OR (2) Having BAC of.08 or more Statutes are not In Pari Materia Different subject matters DWI covers intoxication from alcohol and drugs DUI covers only alcohol consumption Different purposes DWI protects safety from intoxicated persons driving a vehicle DUI enacted as part of zero tolerance standard for minors and to create a separate offense Findlay v State, 9 S.W.3d 397 (Tex. App. Houston [14 th Dist.] 1999)

6 What is a DUI? Sec , TABC A minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor s system DUI Elements Minor Defendant Did Operate A Motor Vehicle or Watercraft In a Public Place While Having Any Detectable Amount of Alcohol in the Minor s System

7 Minor Person under 21 years of age Sec , TABC Operate No statutory definition Interpreted very broadly Court of Criminal Appeals: The totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use. Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App.1995) (citing Barton v. State, 882 S.W.2d 456, 460 (Tex. App.-Dallas 1994, no writ)) Sufficient evidence of Operate Asleep at the wheel with vehicle idling and transmission in neutral Barton v State, 822 S.W.2d 456 (Tex.App. Dallas 1994, no pet.)

8 Sufficient evidence of Operate Started and revved engine, but did not move Denton v State, 911 S.W.2d 388 (911 S.W.2d 388 (Tex. Crim. App.1995) Sufficient evidence of Operate Vehicle parked with engine running in parking lot at Applebee s. Dornbusch v State, 262 S.W.3d 432 (Tex. App. Fort Worth 2008, no pet.) But Be Careful with Jury Charge! Although an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court's inclusion of that definition in a jury charge constitutes an improper comment on the weight of the evidence Jury should be free to assign any meaning in common parlance to the term Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App.2012)

9 Motor Vehicle or Watercraft Motor Vehicle means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks (Sec , Penal Code) Watercraft means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water (Sec , Penal Code) Public Place Public place means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops (Sec. 1.07, Penal Code) Courts have held that the relevant inquiry is whether public can enter the premises More Public Places: Parks Park hours irrelevant Perry v State, 991 S.W.2d 50 (Tex.App. Fort Worth 1998, pet. ref d) Parking Lot Even if there is an entrance fee State v. Nailor, 949 S.W.2d 357 (Tex.App. San Antonio 1997, no pet.).

10 Any Detectable Amount No statutory definition Common usage Zero Tolerance Prior Driving Records of Drivers Involved in Fatal Crashes by BAC 25% 20% 15% 10% Reported Crashes Prior DWI Prior Speeding 5% 0% BAC.00 BAC BAC.08 What Are You Likely to See?

11 Probable Cause Affidavit Other traffic offense Officer observations Passive Alcohol Sensor Field Sobriety Tests Breath test Officer Observations Red, glassy, bloodshot eyes Slurred, hesitant, slow speech Where is alcohol odor coming from? What is visible in the car? Passive Alcohol Sensor (PAS) Not as evidence of alcohol concentration But may be used as a sobriety test and show the presence of alcohol Fernandez v State, 915 S.W.2d 572 (Tex. App. San Antonio 1996, no pet.)

12 Field Sobriety Tests One Leg Stand Walk and Turn Horizontal Gaze Nystagmus Non-standard tests Breath Tests

13 Statutory Warnings DIC-24 Refusal admissible (Sec , TC) Attorneys Discovery issues Defense Motions Witness Subpoena Requests This phrase: I usually practice in

14 Punishment Range DUI Punishment First $500 Alcohol Awareness (Mandatory) Community Service TXDL Suspension 60 days Second $500 Alcohol Awareness (Discretionary) Community Service TXDL Suspension 120 days Third $ Alcohol Awareness (Discretionary) Community Service TXDL Suspension 180 days 180 Jail No deferred Third DUI and Minor Child If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section Sec (c), TC

15 Child Definition Child means a person who is ten years old or older and under 17 years old Sec , Family Code Third Offense for Minor Child Third Offense Juvenile Case Manager Under , CCP No Juvenile Case Manager May Waive Jurisdiction 51.08(d), Family Code Retain Jurisdiction (Remains Class C) Shall Waive Jurisdiction 51.08(b)(1)(B), Family Code Determining DUI Priors (1) Conviction (2) Deferred Disposition (3) Adjudication Under Title 3, Family Code, that minor engaged in conduct described in Sec

16 Statutory Requirements Community Service Community service must be related to education about or prevention of misuse of alcohol Sec (e), TABC Alcohol Awareness Attend an alcohol awareness program OR a drug and alcohol driving awareness program (DADAP) Sec , TABC.

17 New Subsection (b-1) (1) If defendant resides in a county with a population of 75,000 or less; and (2) Access to an alcohol awareness program is not readily available Then May Take Online Course or Community Service Online course approved by the Department of State Health Services Community Services approved by the Department under (b-3) Not less than eight hours of community service related to alcohol abuse prevention or treatment Sec (b-3) The Department of State Health Services shall create a list of community services related to alcohol abuse prevention or treatment in each county

18 Suspensions First Second Third 60 days Not eligible occupational for first 30 days 120 days Not eligible occupational for first 90 days 180 days Not eligible occupational for entire suspension Sec , TC Questions?

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