Texas Code of Criminal Procedure requires a magistrate to order a defendant being released on DWI 2nd or Felony DWI bond to install an ignition interlock device on any vehicle he owns or has access to.
What’s an ignition interlock device? From the statute:
…a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator
The condition will be imposed on anyone arrested for DWI with a prior conviction, whether the defendant is released on personal bond, cash or cash deposit bond,
Austin DWI Lwayer
TEXAS DWI LAWS AND DEFENSE OF DWI CHARGES
Thursday, July 8, 2010
FELONY MURDER APPLIED TO DWI WHATS NEXT ?
Randy England has an excellent post that illustrates the dangers of applying “worst case scenario” thinking to every situation. But before we get to the article, let me put on my Modest Proposal hat to see whether I can rile you up and get your Tough-On-Crime legislative juices running…
#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.
#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.
#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.
#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.
DWI: EVEN YOUR LAWYER DOSENT KNOW WHETHER YOU ARE GUILTY
DWI defense lawyers write and talk often about the inherent unfairness in penalizing DWI so harshly, when there is so much uncertainty about whether someone is guilty. Criminal defense lawyers write and talk about how they answer “that question”…you know the one: How can you defend someone you know is guilty?
Mark Bennett wrote a while back about jury selection in a DWI case in Houston, and for some reason, the short post has been floating around in the back of my mind. He listed off age, race, gender and occupation of the six folks that ended up on the jury, noting that it was an unusual mix for a Harris County jury.
I think the point of his post was that his client was really going to get a jury of his peers, rather than the usual makeup of a jury, and he ended the post with this line:
Mark Bennett wrote a while back about jury selection in a DWI case in Houston, and for some reason, the short post has been floating around in the back of my mind. He listed off age, race, gender and occupation of the six folks that ended up on the jury, noting that it was an unusual mix for a Harris County jury.
I think the point of his post was that his client was really going to get a jury of his peers, rather than the usual makeup of a jury, and he ended the post with this line:
PLEADING NO CONTESTTO DWI TX AND PREPARING THE WITNESS
Perusing my recent stats, courtesy of Mint, and I see someone has Googled the title of this post.
Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge.
There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.
And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.
Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge.
There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.
And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.
DWI DEFENDANT ARE COMING AWAY WHICH WHY ?
Just in from a marketer via email, with the title line “Thousands of DUI Defendents are Coming!”:
It’s super obvious that there is absolutely no screening of the lawyers whatever. If you pay the fee, you are listed, and then become (simply by virtue of sending them money):
Because we are the #1 Google ranked DUI/DWI website, thousands of DUI/DWI defendents[sic – I couldn’t bring myself to misspell it in the title of my post though] will come to our site next week looking for an attorney. Will you get your share?
Just one case will pay for your Membership many times over. Please respond to this email now or call (123) 456-7890.I haven’t linked to the “nationwide network of DUI defenders” that sent me the email, not wanting to hand out any undeserved Google love. But from a quick click through to the site – I had to look - the amusing thing, at least from my perspective, is that it tries to sell both potential clients on member lawyers, and potential lawyer clients of the network on paying the site to list them.
It’s super obvious that there is absolutely no screening of the lawyers whatever. If you pay the fee, you are listed, and then become (simply by virtue of sending them money):
…expertly familiar with all the intricacies and nuances involved with DUI offenses. This index of lawyers will take you through them step by step, explaining testing, sentencing, jury trends…Do the recently arrested who comb the internet realize: a bar card and some money makes any and every lawyer an expert?
DWI OFFICER WRITE COMMENT
In response to my post about DWI lawyers and blogs, a commenter who called himself DWI Officer wrote:
Jamie, it is interesting that you wrote, "I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI..." Don't you think the defendant has some control over his/her life, such as making the choice to drive under the influence in the first place? It is no secret that driving under the influence is against the law.
TEXAS JUDGE RULES ON POLICE BLOOD DRWS
Even as Austin Police Chief Art Acevedo prepares to ‘train’ his officers to forcibly take blood from Travis County DWI suspects, a judge in Tarrant County has ruled that prosecutors may not use blood results from forcible blood draws done by improperly trained cops.
And, as of now, that appears to be all police officers.
In my previous post, I predicted that Acevedo’s attempts to ‘train’ his police officers to take blood from DWI suspects that refuse a breath test would run into some legal problems: primarily that they wouldn’t meet the legal standards laid out in Texas Transportation Code Section 724.017 and would therefore be subject to a motion to suppress the test results.
As Robert Guest points out:
But while I love the nurses & SWAT tanks line, I’m not as confident as he is that forced urine tests are so impossible. Painful? Orwellian? Perhaps.
But then again, they could be coming to a city near you…
And, as of now, that appears to be all police officers.
In my previous post, I predicted that Acevedo’s attempts to ‘train’ his police officers to take blood from DWI suspects that refuse a breath test would run into some legal problems: primarily that they wouldn’t meet the legal standards laid out in Texas Transportation Code Section 724.017 and would therefore be subject to a motion to suppress the test results.
As Robert Guest points out:
These cops had some EMT training. However, the law states that EMTs aren't qualified.In the comments to the local Austin story about “No Refusal Weekends” many local citizens complained that the police would open themselves to civil liability if Acevedo’s plan was implemented. Actually, I think Guest is right: it would be difficult to mount a successful civil lawsuit.
Police should not be drawing blood.
First, they have a vested interest in convicting the defendant, not attending to medical needs.
Second, if the cop actually kills or injures someone they have near complete immunity.
Finally, State law includes breath, blood, and urine for evidence of intoxication. What if the police start getting breath/urine warrants?
Ok. So the last one is not likely (yet). However, we don't want police playing nurse anymore than we want nurses driving the SWAT tank.
But while I love the nurses & SWAT tanks line, I’m not as confident as he is that forced urine tests are so impossible. Painful? Orwellian? Perhaps.
But then again, they could be coming to a city near you…
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