Richard Alpert's DWI Case Law

I. INFORMATION/CHARGING INSTRUMENT

  1. MENTAL OR PHYSICAL FACULTIES
  2. "PUBLIC PLACE" IS SPECIFIC ENOUGH
  3. STATE DOES NOT HAVE TO SPECIFY WHICH DEFINITION OF INTOXICATION
    IT IS RELYING ON IN THE INFORMATION
  4. NO MENTAL STATE NECESSARY IN DWI CHARGE
    1. PRE §49.04
    2. POST §49.04
  5. UNOBJECTED TO ERROR IN CHARGING INSTRUMENT
  6. READING DWI ENHANCEMENT AT WRONG TIME

II. VOIR DIRE

  1. PROPER QUESTION/STATEMENT
  2. IMPROPER QUESTION/STATEMENT
  3. CHALLENGE FOR CAUSE
    1. PRESUMPTION OF INNOCENCE
    2. ONE WITNESS CASE
    3. JURORS WHO WOULD REQUIRE BREATH TEST TO CONVICT
    4. JURORS ABILITY TO CONSIDER FULL RANGE OF PUNISHMENT
    5. BIAS TOWARDS POLICE OFFICERS DOES NOT ALWAYS MAKE JURORS CHALLENGEABLE

III. DWI ROADBLOCKS

  1. ARE ILLEGAL
  2. AVOIDING ROADBLOCK CAN PROVIDE BASIS FOR STOP

IV. TRAFFIC VIOLATIONS

V. OCCUPATIONAL LICENSE CHART

  1. CAN'T DENY OCCUPATIONAL LICENSE FOR FAILURE TO PAY SURCHARGE 

VI. BASIS FOR VEHICLE STOP

  1. LEGAL STANDARD
  2. TICKETS THAT PROVIDED BASIS FOR STOP INADMISSIBLE
  3. INFORMATION FROM CITIZEN/POLICE RADIO/ANONYMOUS CALL
    1. SUFFICIENT BASIS FOR STOP
    2. IDENTIFIED CITIZEN--CREDIBLE AND RELIABLE
    3. DETAILS OF POLICE BROADCAST ARE ADMISSIBLE
    4. ANONYMOUS TIP FROM EMS TECHNICIAN
    5. INFORMATION COMMUNICATED TO 911 OPERATOR BUT NOT TO OFFICER WILL SUPPORT STOP 
    6. ANONYMOUS TIP FROM HITCHHIKER
    7. ANONYMOUS TIP FROM TRUCK DRIVER
  4. BAD DRIVING/CONDUCT NEED NOT = CRIMINAL OFFENSE
  5. "COMMUNITY CARE-TAKING FUNCTION" (CCF)
    1. APPLIES
    2. DOESN'T APPLY
  6. OFFICER'S ARREST AUTHORITY WHEN OUTSIDE JURISDICTION
    1. FOR A TRAFFIC OFFENSE
      1. STOPS MADE BEFORE 9-01-05 = NO
      2. STOPS MADE AFTER 9-01-05 = YES
    2. CAN STOP AND ARREST FOR "BREACH OF PEACE"
    3. TO MAKE ARREST FOR DWI
    4. FAILURE TO NOTIFY OFFICERS WITHIN JURISDICTION DOES NOT VIOLATE EXCLUSIONARY RULE
    5. CITY VS. COUNTY-WIDE JURISDICTION
      1. COUNTY-WIDE
      2. OFFICER WITHIN JURISDICTION'S PARTICIPATION
      3. HOT PURSUIT
  7. PRETEXT STOPS - NO LONGER BASIS FOR SUPPRESSION
  8. OPERATING VEHICLE IN UNSAFE CONDITION
  9. FAILING TO DIM LIGHT
  10. RAPID ACCELERATION/SPINNING TIRES
  11. WEAVING WITHIN LANE
    1. YES
    2. NO
  12. DEFECTIVE TAIL LAMP OR BRAKE LAMP AS BASIS FOR STOP
    1. NO
    2. YES
  13. MUST RADAR EVIDENCE MEET KELLY TEST?
    1. YES
    2. JUDICIAL NOTICE OF RADAR
    3. RADAR MEETS 1ST PRONG OF KELLY TEST
  14. CITIZEN'S ARREST FOR 'BREACH OF THE PEACE' AS BASIS FOR STOP
  15. TURNING/EXITING WITHOUT A SIGNAL
    1. YES
    2. NO
  16. "FOLLOWING TOO CLOSELY"- SUFFICIENT DETAIL?
    1. NO
    2. YES
  17. DRIVING UNDER THE POSTED SPEED LIMIT
    1. INSUFFICIENT ON THESE FACTS
    2. SUFFICIENT ON THESE FACTS
  18. APPROACHING A VEHICLE THAT IS ALREADY STOPPED
    1. ENCOUNTER
    2. NOT AN ENCOUNTER
    3. APPROACHING DEFENDANT OUTSIDE OF AND AWAY FROM VEHICLE = ENCOUNTER 
  19. PLATE OBSCURING STATE SLOGAN AND IMAGES PROVIDES BASIS FOR STOP
  20. DRIVERS LICENSE CHECKPOINT
  21. VEHICLE STOPPED AT LIGHT
  22. PASSING ON IMPROVED SHOULDER
  23. OBJECTIVE FACTS CAN TRUMP OFFICER'S SUBJECTIVE BELIEF AND SUPPORT STOP
  24. REVVING ENGINE AND LURCHING FORWARD SUFFICIENT BASIS FOR STOP
  25. STOP IS VALID IF NO TRAFFIC OFFENSE BUT OFFICER'S BELIEF THERE WAS A TRAFFIC OFFENSE IS REASONABLE 

VII. PORTABLE ALCOHOL SENSOR DEVICES

VIII. WARRANTLESS ARREST DWI SUSPECT - OFFENSE NOT VIEWED

  1. BASED ON PUBLIC INTOXICATION THEORY
  2. BASED ON "BREACH OF PEACE" THEORY
  3. BASED ON "SUSPICIOUS PLACE" THEORY
    1. FRONT YARD
    2. PARKING LOT
    3. HOSPITAL
    4. THE DEFENDANT'S HOME
    5. ACCIDENT SCENE
  4. NEED NOT ACTUALLY CHARGE SUSPECT WITH PUBLIC INTOXICATION
  5. IMPLIED CONSENT LAW STILL APPLIES

IX. VIDEO

  1. PARTS OF PREDICATE CAN BE INFERRED
  2. NEW PREDICATE REPLACES EDWARDS
  3. OPERATOR QUALIFICATIONS
  4. SUPPRESSIBLE ITEMS
    1. INVOCATION OF RIGHT TO COUNSEL
    2. INVOCATION OF RIGHT TO TERMINATE INTERVIEW
    3. EXTRANEOUS OFFENSES - IF OBJECTED TO
  5. NOT SUPPRESSIBLE
    1. AUDIO OF FSTs
    2. FST REFUSAL
    3. VIDEO PORTION AFTER AUDIO SUPPRESSED
    4. INVOCATION OF RIGHT TO COUNSEL DURING BT REFUSAL
    5. VIDEO PORTION ADMISSIBLE EVEN IF AUDIO DID NOT RECORD
    6. FIELD SOBRIETY TESTS ARE NON-TESTIMONIAL
    7. VERBAL FSTs TESTS/ALPHABET & COUNTING ARE NOT TESTIMONIAL
    8. RIGHT TO COUNSEL - MUST BE CLEARLY INVOKED
    9. RIGHT TO REMAIN SILENT MAY NOT BE SELECTIVELY INVOKED
  6. ABSENCE OF VIDEOTAPE
    1. NOT GROUNDS FOR ACQUITTAL
    2. UNLESS DESTRUCTION OF TAPE IN BAD FAITH
    3. NO JURY INSTRUCTION FOR FAILURE TO TAPE
    4. DESTRUCTION OF SCENE VIDEO WON’T SUPPORT SUPPRESSION OF STATION VIDEO
  7. SURREPTITIOUS AUDIO RECORDINGS
    1. PRE-ARREST
    2. POST-ARREST
  8. DEFENSE RIGHT TO VIEW TAPE BEFORE TRIAL
  9. TAPE MADE IN FOREIGN LANGUAGE
  10. PROVIDING DEFENDANT WITH COPY OF DWI VIDEOTAPE
    1. DEFENDANT NEED ONLY BE GIVEN "ACCESS"
    2. ACCESS TO THE TAPE IS NOT REQUIRED UNLESS THERE IS "CUSTODIAL INTERROGATION"
  11. NO SOUND = NO PROBLEM
  12. MOBILE VIDEO CAMERA TAPE ADMISSIBLE
  13. STATE MAY SUBPOENA/OFFER DEFENDANT'S COPY
  14. LOSING VIDEOTAPE BETWEEN TRIAL AND APPEAL DOES NOT REQUIRE NEW TRIAL
  15. PROBLEM OF OTHER STOPS BEING VISIBLE ON DWI TAPE
  16. VIDEO PART OF TAPE MAY BE ADMISSIBLE WITHOUT OPERATOR'S TESTIMONY
  17. INABILITY TO ID ALL BACKGROUND VOICES NOT A PROBLEM
  18. OFFICER'S NARRATIVE ON PERFORMANCE OF FSTs
    1. CUMULATIVE
    2. INADMISSIBLE HEARSAY
  19. NO REQUIREMENT THAT POLICE ACTUALLY VIDEOTAPE DWI ARRESTS

X. IN-COURT DEMONSTRATIONS/EXHIBITS

  1. FIELD SOBRIETY TESTS
  2. SMELL TEST
  3. SMELL & TASTE TEST
  4. CHART OF SYMPTOMS OF INTOXICATION INADMISSIBLE
  5. CHART OF SYMPTOMS OF INTOXICATION-DEMONSTRATIVE EVIDENCE
  6. DEMONSTRATION OF DEFENDANT'S SPEECH
  7. ERROR TO ALLOW BOTTLE OF VODKA TO BE ADMITTED AS DEMONSTRATIVE EVIDENCE
  8. 911 TAPE ADMISSIBLE 

XI. ONE WITNESS SUFFICIENT (OPINION TESTIMONY)

XII. IMPEACHING POLICE OFFICER

  1. FINANCIAL MOTIVE
  2. QUOTAS
  3. C EMPLOYMENT AND DISCIPLINARY HISTORY

XIII. IMPEACHING DEFENDANT AND BOND FORFEITURE EVIDENCE

  1. PROPER
  2. IMPROPER
  3. EVIDENCE OF BOND FORFEITURE ADMISSIBLE

XIV. STATEMENTS BY DEFENDANT

  1. PRE-ARREST STATEMENTS
    1. ADMISSIBLE
    2. INADMISSIBLE, "CUSTODIAL INTERROGATION"
  2. "MIRANDA WARNINGS" - RECITATION MUST BE ACCURATE
  3. ACCIDENT REPORTS STATUTE HAS NO EFFECT ON ADMISSIBILITY OF DRIVER'S ORAL STATEMENTS
  4. DOES HANDCUFFING DEFENDANT PLACE HIM IN "CUSTODY" FOR MIRANDA PURPOSES?
    1. NO
    2. YES
  5. TAKING KEY AND DIRECTING SUSPECT NOT TO LEAVE DOES NOT NECC = ARREST 
  6. STATEMENTS BY DEFENDANT'S HUSBAND - NOT HEARSAY
  7. PRE-ARREST SILENCE TESTIMONY/COMMENTS DO NOT VIOLATE 5TH AMENDMENT 

XV. FIELD SOBRIETY TESTS

  1. HORIZONTAL GAZE NYSTAGMUS
    1. IS ADMISSIBLE
    2. OFFICER DOES NOT HAVE TO BE AN OPHTHALMOLOGIST TO TESTIFY
    3. DOES THE OFFICER NEED TO BE CERTIFIED?
      1. NO, BUT RULE 702 REQUIREMENTS MUST BE MET
      2. CERTIFICATION FROM A TRAINING COURSE WILL SUFFICE
      3. OFFICER MUST HAVE SOME CERTIFICATION
    4. IMPROPER FOR TRIAL COURT TO TAKE JUDICIAL NOTICE OF TEST'S RELIABILITY
    5. WITNESS CORRELATING TEST TO BLOOD ALCOHOL CONCENTRATION
      1. CAN'T DO IT 
      2. EXCEPT WHEN DEFENDANT "OPENS THE DOOR" 
    6. VERTICAL GAZE NYSTAGMUS/RESTING NYSTAGMUS
    7. IMPACT OF FAILING TO PERFORM FSTs PER NHTSA GUIDELINES
    8. DVD SHOWING HGN PROPERLY ADMITTED AS DEMONSTRATIVE AID
  2. ONE LEG STAND = LAY WITNESS TESTIMONY
  3. WALK AND TURN = LAY WITNESS TESTIMONY
  4. OFFICER MAY TESTIFY ABOUT SCIENTIFIC STUDIES FINDINGS RE: THE RELIABILITY OF FST'S
  5. OFFICERS MAY COERCE SUSPECT INTO PERFORMING FST's
  6. REFUSAL TO PERFORM FSTs = PC TO ARREST AND EVIDENCE OF GUILT
  7. FAILURE TO EXPLAIN FSTs IN DEFENDANT'S NATIVE TONGUE = NO VIOLATION 
  8. DRE TESTIMONY ADMISSABLE

XVI. SPECIFIC ELEMENTS

  1. PUBLIC ROAD - PLACE
    1. PARKING LOTS
    2. MILITARY BASES
    3. PARK AS A PUBLIC PLACE
    4. DRIVEWAY
    5. MARINA
    6. GATED COMMUNITY
  2. PROOF OF "STATE"
  3. PROOF OF "MOTOR VEHICLE"
  4. "NORMAL USE OF MENTAL OR PHYSICAL FACULTIES"
  5. ADMISSIBILITY OF ILLEGAL DRUGS TO PROVE INTOXICATION

XVII. BREATH TEST

  1. IMPLIED CONSENT LAW
  2. BREATH TEST PREDICATE
  3. INSTRUMENT CERTIFICATION
    1. NEW INSTRUMENT NEED NOT BE RE-CERTIFIED
    2. CERTIFICATION AND MAINTENANCE RECORDS ADMISSIBLE
  4. LIMITED RIGHT TO BLOOD TEST
    1. FAILURE TO ADVISE OF RIGHT TO BLOOD TEST
    2. NO RIGHT TO BLOOD TEST IN LIEU OF BREATH TEST
    3. OFFICERS CHOICE WHETHER BREATH OR BLOOD
  5. MIRANDA WARNINGS
    1. NEED NOT GIVE PRIOR TO REQUEST FOR BREATH SAMPLE
    2. INVOCATION OF RIGHTS WILL NOT EXCLUDE REFUSAL
    3. NO RIGHT TO COUNSEL PRIOR TO DECIDING WHETHER TO GIVE SAMPLE
  6. BREATH AMPULES NEED NOT BE PRESERVED
  7. DIC-23 & DIC-24 WARNINGS
    1. REQUIREMENT THEY BE GIVEN IN WRITING RELATES ONLY TO ADMISSIBILITY OF REFUSALS
    2. FAILURE TO GIVE WARNINGS IN WRITING NOT NECESSARILY FATAL
    3. WRITTEN WARNINGS NEED NOT BE PROVIDED PRIOR TO REFUSAL
    4. THAT ARREST PRECEDE READING OF DIC-24 = FLEXIBLE
    5. DIC-24 NOTICE IN WRITING REQUIREMENT SATISFIED BY MAKING WRITTEN COPY "AVAILABLE"
    6. OFFICER WHO READS DIC-24 & REQUESTS SAMPLE NEED NOT BE ARRESTING OFFICER
    7. WARNINGS SHOULD BE GIVEN BY OFFICER-BUT....
    8. DIC-24 - WORDING .10 OR GREATER - IS CORRECT - THOUGH IT'S NOT TIED TO DRIVING
    9. DIC-24 IN SPANISH
      1. ERROR IN WRITTEN TRANSLATION DID NOT MAKE CONSENT INVALID
      2. FAILURE TO TRANSLATE SPANISH AUDIO TAPE READING OF WARNING INTO ENGLISH AT TRIAL THOUGH ERROR WAS HARMLESS
    10. COMMERCIAL DRIVER'S LICENSE WARNINGS
      1. NEED TO BE GIVEN
      2. DON'T NEED TO BE GIVEN
    11. DIC 23 & DIC 24 DOCUMENTS ARE NOT HEARSAY
    12. DEFENDANT DEAF - FAILED TO UNDERSTAND HE COULD REFUSE - NO PROBLEM WHEN SAMPLE GIVEN 
    13. FAILURE TO READ "UNDER 21" PORTION OF DIC 24 NOT PRECLUDE ADMISSION OF BT
    14. URINE SAMPLE
  8. NOT NECESSARY TO SHOW 210 LITERS OF BREATH
  9. BREATH TEST NOT COERCED
    1. EXTRA WARNING REFERRED TO CONSEQUENCES OF PASSING NOT REFUSING
    2. NO EVIDENCE THAT ADDITIONAL WARNING ACTUALLY COERCED DEFENDANT
    3. NO EVIDENCE THAT DEFENDANT RELIED UPON EXTRA WARNING
    4. DEFENDANT GAVE SAMPLE, CONSEQUENCES UNDERSTATED
    5. AT MTS IT IS THE DEFENDANT'S BURDEN TO SHOW CONSENT TO GIVE BT WAS NOT VOLUNTARY
    6. INSUFFICIENT EVIDENCE OF CAUSAL CONNECTION BETWEEN OFFICER STATEMENT AND CONSENT
  10. STANDARD FOR COERCION CHANGED - ERDMAN OVERRULED 
  11. REFUSAL EVIDENCE ADMISSIBLE
    1. AS EVIDENCE OF GUILT
    2. NO VIOLATION OF 5TH AMENDMENT
    3. REASON FOR REFUSAL AND CONDITION OF INSTRUMENT IRRELEVANT
    4. REFUSAL BASED ON INTOXICATION IS STILL A "REFUSAL"
    5. INTOXICATION MAY BE PRESUMED FROM BTR
  12. LATE BREATH TEST - CAN BE SUFFICIENT
    1. LATE TEST NOT CONCLUSIVE BUT IS PROBATIVE
    2. AFTER 1 HOUR & 20 MINUTES
    3. AFTER 2 HOURS
    4. AFTER 2 HOURS & 15 MINUTES
    5. AFTER 2 HOURS & 30 MINUTES
    6. AFTER 4 HOURS & 30 MINUTES
    7. AFTER 7 HOURS
  13. OBSERVATION PERIOD
    1. MORE THAN ONE OFFICER OBSERVATION REQUIREMENT
    2. NO NEED TO REPEAT ON 2ND TEST
    3. NO LONGER NECESSARY TO "OBSERVE" DEFENDANT FOR 15 MINUTES
    4. REMAINING IN PRESENCE DOES NOT NECESSARILY REQUIRE OPERATOR BE CONTINUOUSLY IN THE SAME ROOM 
  14. BREATH TEST DELAY PRECLUDING BLOOD TEST
  15. OFFICER MAY REQUEST MORE THAN ONE TYPE OF TEST
  16. BREATH TEST ADMISSIBLE AS PROOF OF LOSS OF NORMAL
  17. BREATH TEST RESULTS ADMISSIBILITY ISSUES
    1. BREATH TEST RESULT IS NOT HEARSAY
    2. PARTIAL TEST RESULTS INADMISSIBLE
    3. NEW TECHNICAL SUPERVISOR CAN LAY PREDICATE FOR OLD TESTS
  18. KELLY V. STATE
    1. APPLIES TO BREATH TESTS
    2. FIRST TWO PRONGS OF KELLY TEST MET BY STATUTE
  19. PROPER TO OFFER BT SLIPS TO SHOW NO RESULT OBTAINED
  20. LOSS OF NORMAL & PER SE LAW EVIDENCE NOT MUTUALLY EXCLUSIVE
  21. NO SAMPLE TAKEN = NO DUE PROCESS VIOLATION
  22. FAILURE TO TIMELY RESPOND TO REPEATED BT REQUEST = REFUSAL
  23. EXTRAPOLATION
    1. IS NOT NEEDED TO PROVE DEFENDANT WAS INTOXICATED UNDER CHEMICAL TEST DEFINITION
    2. PROBATIVE VALUE OF BT OUTWEIGHS PREJUDICIAL EFFECT
    3. PREJUDICE OUTWEIGHS PROBATIVE (A RIDICULOUS OPINION)
    4. EXTRAPOLATION TESTIMONY IS ADMISSIBLE UNDER KELLY, 824 S.W.2D 573 (TEX.CRIM.APP. 1992)
    5. EXTRAPOLATION EVIDENCE IMPROPERLY ADMITTED
    6. IMPROPER ADMISSION OF EXTRAPOLATION EVIDENCE
      1. NOT HARMLESS
      2. HARMLESS
    7. EVIDENCE OF DRUG INGESTION STILL RELEVANT WITHOUT EXTRAPOLATION
    8. EXTRAPOLATION EVIDENCE PROPERLY ADMITTED
    9. RESULT OF BLOOD DRAWN 5/12 HOURS AFTER ARREST WITHOUT EXTRAPOLATION ADMISSIBLE UNDER RULE 403
  24. OPERATOR NEED NOT UNDERSTAND SCIENCE BEHIND THE INSTRUMENT!
  25. FAILURE TO NOTE TEMPERATURE
    1. OF REFERENCE SAMPLE = BT EXCLUDED
    2. OF REFERENCE SAMPLE = BT NOT EXCLUDED 
    3. OF SUSPECT & REFERENCE SAMPLE = BT NOT EXCLUDED

XVIII. BLOOD TEST

  1. MANDATORY BLOOD "REASONABLE BELIEF" STANDARD
    1. MET
    2. NOT MET
  2. ARREST AT THE HOSPITAL
    1. RESTRAINT WAS SUFFICIENT
    2. LATER RELEASE DID NOT NEGATE
  3. STATUTORY REQUIREMENTS FOR DRAWING MANDATORY BLOOD DO NOT APPLY
    1. WHEN DEFENDANT CONSENTS
    2. WHEN DEFENDANT IS NOT UNDER ARREST
    3. CONSENT NOT INVOLUNTARY OR COERCED 
    4. READING DIC-24 AS EVIDENCE OF ARREST
  4. PROCEDURE FOR TAKING BLOOD SAMPLE
    1. OFFICERS MAY USE FORCE TO TAKE BLOOD
    2. SAMPLE FROM UNCONSCIOUS DEFENDANT
    3. USE OF ALCOHOL SWAB BEFORE BLOOD DRAW
    4. WHAT CONSTITUTES A "QUALIFIED TECHNICIAN"
      1. "PHLEBOTOMIST" MAY BE A "QUALIFIED TECHNICIAN"
      2. "PHLEBOTOMIST" QUALIFICATION MUST STILL BE SHOWN
      3. RESTRICTIONS ON WHO MAY DRAW BLOOD ONLY APPLY IF SUSPECT IS UNDER ARREST
      4. MEDICAL TECHNOLOGIST/TECHNICIAN IS A QUALIFIED TECHNICIAN 
    5. EMS PERSONNEL MAY NOT DRAW MANDATORY BLOOD – EMT CAN
  5. HOSPITAL RECORDS
    1. ARE NOT PRIVILEGED
    2. OBTAINING RECORDS BY SUBPOENA
    3. RELEASE OF DEFENDANT'S HOSPITAL RECORDS IN RESPONSE TO A GJ SUBPOENA DOES NOT VIOLATE HIPAA
    4. NO HIPAA VIOLATION IN HOSPITAL PERSONNEL TELLING POLICE BREATH-ALCOHOL CONTENT WITHOUT SUBPOENA
  6. CHAIN OF CUSTODY REQUIREMENTS
    1. BLOOD TESTED IS SAME AS BLOOD DRAWN
    2. NOT NECESSARY THAT PERSON WHO DREW BLOOD TESTIFY
    3. GAPS IN CHAIN GO TO "WEIGHT" NOT ADMISSIBILITY
    4. NOT NECESSARY TO SHOW WHO DREW THE BLOOD
    5. NOT NECESSARY TO SHOW WHO DREW OR TESTED THE BLOOD!
    6. PROVING HOSPITAL BLOOD RESULTS WITH BUSINESS RECORDS AFFIDAVIT
  7. SANITARY PLACE REQUIREMENT
  8. HOSPITAL-DRAWN SERUM-BLOOD TEST
  9. HOSPITAL DRAWN SAMPLE ASSAULT
  10. ACQUIESCENCE TO HOSPITAL BLOOD DRAW = CONSENT
  11. SEARCH WARRANT FOR BLOOD IN DWI CASE
    1. IS PROPER
    2. SEARCH WARRANT AFFIDAVIT FAILED TO NOTE DATE/TIME OF STOP 
    3. SEARCH WARRANT AFFIDAVIT LISTED THE WRONG YEAR NOT FATAL 
    4. SEARCH WARRANT AFFIDAVIT HAVING MULTIPLE CLERICAL ERRORS NOT FATAL  
    5. SEARCH WARRANT AFFIDAVIT FAILED TO SET OUT THE BASIS FOR THE TRAFFIC STOP NOT FATAL 
    6. SEARCH WARRANT AFFIDAVIT WAS NOT SIGNED BY AFFIANT = NOT FATAL 
    7. SIGNATURE ON WARRANT NOT LEGIBLE IS NOT FATAL 
    8. SEARCH WARRANT AFFIDAVIT CONTAINING MULTIPLE ABBREVIATIONS THAT WERE NOT EXPLAINED = NOT FATAL 
    9. THE RELIABILITY OF THE FST'S DESCRIBED IN THE SEARCH WARRANT AFFIDAVIT ARE ATTACKED = NOT FATAL 
    10. FAXED WARRANT WHERE OATH WAS ADMINISTERED BY MAGISTRATE TO AFFIANT OVER THE PHONE
    11. THE JURISDICTION OF THE STATUTORY COUNTY COURT IS ATTACKED AND FOUND TO BE LIMITED
    12. SEARCH WARRANT AFFIDAVIT ATTACKED FOR HAVING INSUFFICIENT FACTS TO SUPPORT PC AND FOR FAILING TO NOTE DATE/TIME OF STOP 
    13. FAILURE TO SPECIFY WHAT POLICE INTEND TO DO WITH BLOOD SAMPLE = NOT FATAL 
    14. JURISDICTION OF MUNICIPAL POLICE DEPARTMENT AS REGARDS EXECUTION OF WARRANT IS COUNTY WIDE
    15. SEARCH WARRANT NOT RELATING DETAILS ABOUT CREDIBILITY OF AFFIANT NOT FATAL
    16. AFFIANT MISTATEMENTS IN WARRANT AFFIDAVIT MAY INVALIDATE  AND MAY LEAD TO SUPPRESSION
    17. MAY THE JUDGE WHO SIGNED WARRANT PRESIDE OVER MTS HEARING ON THAT SAME WARRANT - YES
    18. QUALIFIED PERSON NOT NAMED IN WARRANT MAY DRAW BLOOD
    19. SEARCH WARRANT OATH NOT ADMINISTERED
    20. AFFIDAVIT NEED NOT SPELL OUT HOW BLOOD WILL BE EVIDENCE       
  12. DIC-24 NEED NOT BE READ BEFORE MANDATORY BLOOD DRAW
  13. FAILURE TO REQUEST CONSENT BEFORE MANDATORY DRAW NOT FATAL
  14. ONLY ONE SAMPLE MAY BE DRAWN UNDER MANDATORY BLOOD LAW
  15. NCIC AND TCIC DETAILS CONSTITUTE "RELIABLE INFORMATION FROM A CREDIBLE SOURCE" FOR PURPOSE OF DETERMINING MANDATORY BLOOD DRAW IS APPROPRIATE 
  16. WHEN DEFENDANT CONSENTS, 724.012 OF TRANSPORTATION CODE DOES NOT APPLY
  17. OFFICER BLOOD DRAW PROCEDURE "NOT UNREASONABLE" UNDER THE 4TH AMENDMENT AND NON-MEDICAL ENVIRONMENT IS UPHELD 
  18. PROPER TO BRING OUT IN QUESTIONING DEFENDANT'S FAILURE TO ASK TO RETEST BLOOD
  19. TESTIMONY ABOUT DRUG INGESTION AND ITS EFFECTS
    1. IMPROPERLY ADMITTED
    2. PROPERLY ADMITTED
  20. DEFENSE MOTION TO DISCOVER LAB RECORDS
    1. OVERLY BROAD
    2. NOT OVERLY BROAD
  21. TESTIMONY ABOUT TRACE AMOUNT OF DRUGS IN BLOOD SAMPLE ADMISSIBLE
  22. GAS CHROMATOGRAPH DATA DESTROYED 
  23. SUFFICIENT EVIDENCE THAT PERSON SUFFERED "BODILY INJURY" PER MANDATORY LAW 
  24. MISSOURI V. MCNEELY IMPACT ON OUR MANDATORY DRAW LAW
    1. DOES NOT RENDER IT UNCONSTITUTIONAL 
    2. MCNEELY IMPACTS CASE WHERE OUR MANDATORY STATUTE IS NOT COMPLIED WITH 
    3. RENDERS OUR MANDATORY BLOOD STATUTE UNCONSTITUTIONAL

XIX. EXPERT TESTIMONY

  1. STATE EXPERT OPINION TESTIMONY .08 = LOSS OF NORMAL = PROPER
  2. IMPEACHMENT - PRIOR TESTIMONY (JOHN CASTLE)
  3. EXPERT TESTIMONY ABOUT DWI VIDEO PROPERLY EXCLUDED
  4. DEFENSE EXPERT OPENED DOOR TO DEFENDANT'S ALCOHOLISM
  5. RESULTS OF DEFENSE EXPERT'S EXPERIMENT PROPERLY EXCLUDED

XX. DEFENSES

  1. ENTRAPMENT DEFENSE
  2. NECESSITY DEFENSE
  3. INVOLUNTARY INTOXICATION DEFENSE/INSTRUCTION
  4. INSANITY/AUTOMOTISM
  5. NO "VOLUNTARY ACT" INSTRUCTION

XXI. JURY CHARGE

  1. OBSERVATION PERIOD
    1. NO CHARGE REQUIRED
    2. CHARGE REQUIRED
  2. ALTERNATIVE CAUSATION = NO CHARGE
    1. IN GENERAL
    2. FATIGUE
  3. CHARGE ON WORKING CONDITION OF INSTRUMENT
    1. NOT ENTITLED TO SUCH A CHARGE
    2. ENTITLED TO CHARGE AS TO DPS REGULATIONS
  4. NO CHARGE ON BLOOD OR URINE IN BREATH TEST CASE
  5. SYNERGISTIC CHARGES
    1. PROPER
    2. NOT FOR "FATIGUE"
    3. NOT FOR "THEORY OF INTOXICATION NOT ALLEGED"
  6. GENERAL VERDICT FORM
  7. SEPARATE VERDICT FORMS?
  8. DRIVER'S LICENSE SUSPENSION INSTRUCTION
  9. MOTOR VEHICLE AS A DEADLY WEAPON IN A DWI CASE
    1. IS PROPER
    2. MAY OR MAY NOT BE PROPER?
    3. IS NOT PROPER
    4. NOTICE MUST BE ADEQUATE AND TIMELY
  10. NO DEFINITION OF "NORMAL USE" SHOULD BE GIVEN
  11. NO SUCH THING AS "ATTEMPTED DWI"
  12. NO CHARGE ON INVOLUNTARY INTOXICATION AND AUTOMATISM DEFENSE IN THIS DWI/PRESCRIPTION DRUG CASE
  13. NO MEDICAL EXCUSE INSTRUCTION
  14. NO JURY INSTRUCTION ON FAILURE TO PRESERVE EVIDENCE
  15. DEFINITION OF "OPERATING" IN CHARGE
    1. NOT ERROR TO DENY REQUEST
    2. ERROR TO GIVE JURY DEFINITION OF "OPERATING"
  16. NO JURY INSTRUCTION ON BTR CONSIDERED AS EVIDENCE
  17. ERROR TO CHARGE ON CONCURRENT CAUSATION IN DWI CASE
  18. NOT ENTITLED TO A CCP 38.23 INSTRUCTION
  19. PER SE DEFINITION OPTION SHOULD BE SUBMITTED-LIMITING INSTRUCTION IMPROPER
  20. PROPER TO SUBMIT INSTRUCTION THAT INTOXICATION CAUSED BY DRUGS
  21. DEFINITION IN JURY INSTRUCTION SHOULD BE LIMITED TO EVIDENCE PRESENTED AT TRIAL
  22. WHEN CHARGE SPECIFICALLY USES SUBJECTIVE DEFINITION OF INTOXICATION AND NOT PER SE DEFINITION, THE PER SE DEFINITION SHOULD NOT BE IN JURY INSTRUCTION

XXII. JURY ARGUMENT

  1. PERMISSIBLE
    1. DEFENDANT FAILED TO BLOW BECAUSE HE KNEW HE WOULD FAIL
    2. DEFENDANT'S FAILURE TO DO FSTs ON VIDEO
    3. DEFENDANT'S REFUSAL TO DO ANYTHING (i.e. FSTs, BT)
    4. DEFENDANT'S TRYING TO LOOK GOOD ON TAPE
    5. JURY DOES NOT HAVE TO BE UNANIMOUS ON THEORY OF INTOXICATION
    6. TESTIMONY REGARDING AND ARGUMENT ABOUT DEFENDANT'S FAILURE TO CALL ITS EXPERT WAS PROPER
  2. IMPERMISSIBLE

XXIII. PROBATION ELIGIBLE

XXIV. PRIORS/ENHANCEMENTS

  1. PROVING DEFENDANT IS PERSON NAMED IN JUDGMENT
    1. I.D. MUST BE BASED ON MORE THAN "SAME NAME"
    2. BOOK-IN CARD MUST BE TIED TO JUDGMENT AND SENTENCE
    3. PROOF OF ID POSSIBLE WITHOUT PRINTS OR PHOTOS
    4. COMPUTER PRINTOUT AS PROOF OF PRIOR CONVICTION
  2. PRIORS FOR WHICH DEFERRED ADJUDICATION GIVEN
  3. USE OF DPS RECORDS TO PROVE PRIORS
    1. FOR PURPOSE OF TYING DEFENDANT TO J & S
    2. DPS RECORDS ALONE WITHOUT J & S - NOT ENOUGH
    3. DPS RECORDS NOT EXCLUDABLE UNDER COLE
  4. FAXED COPY OF JUDGMENT & SENTENCE ADMISSIBLE
  5. ENHANCEMENT OF FELONY DWI WITH NON-DWI PRIORS
  6. ERROR IN ENHANCEMENT PARAGRAPH NOT FATAL
    1. WRONG DATE ALLEGED
    2. WRONG CASE NUMBER ALLEGED
    3. WRONG STATE ALLEGED
    4. WRONG CHARGING INSTRUMENT ALLEGED
  7. APPEAL OF REVOKED DWI DOESN'T BAR ITS USE FOR ENHANCEMENT
  8. FELONY DWI
    1. ORDER OF ENHANCEMENTS
    2. UNDERLYING DWI PRIORS ARE ADMISSIBLE IN GUILT/INNOCENCE STAGE
    3. DEFENDANT'S AGREEMENT TO STIPULATE TO PRIORS DOES PRECLUDE THEIR BEING ADMITTED
    4. STIPULATION SHOULD BE ADMITTED INTO EVIDENCE
    5. TWO PRIORS THAT ARISE OUT OF A SINGLE CRIMINAL ACT MAY BE USED TO ENHANCE TO A FELONY
    6. JUDGE HAS NO AUTHORITY TO FIND PRIOR CONVICTION TRUE WHEN ISSUE NOT SUBMITTED TO JURY
    7. STIPULATING TO PRIORS WAIVES 10 YEAR OBJECTION
    8. JURY INSTRUCTION MUST ADDRESS THE STIPULATION
    9. DEFENDANT WHO STIPULATES TO PRIORS ON CONDITION THEY NOT BE MENTIONED WAIVES ABILITY TO COMPLAIN THEY WERE NOT PROVED
    10. PROPER TO USE FEDERAL DWI CONVICTIONS FOR ENHANCEMENT
    11. DATES OF PRIOR DWI'S ARE NOT ELEMENTS OF FELONY DWI
    12. JURY INSTRUCTION NEED NOT REFER TO PARTICULARS OF THOSE PRIORS 
    13. UNDERLYING DWI'S NEED NOT OCCUR BEFORE REP AND HABITUAL COUNTS 
  9. LIMITS ON USE OF DWI PRIORS FOR ENHANCEMENT
    1. PRIOR FELONY DWI MAY BE USED TO ENHANCE FELONY UNDER PENAL CODE SECTION 12.42
    2. SAME PRIOR CANNOT BE USED TWICE
    3. WHAT IS NOT "USING A PRIOR TWICE"
  10. OPEN CONTAINER
    1. SUFFICIENT PROOF OF
    2. EFFECT OF IMPROPER READING OF OPEN CONTAINER ENHANCEMENT IN GUILT INNOCENSE PHASE
  11. PROPER TO ALLEGE DATE PROBATION GRANTED AS OPPOSED TO DATE PROBATION REVOKED
  12. DEFECT IN WORDING OF JUDGMENT/PROBATION ORDER = BAD PRIOR
    1. YES
    2. NO
    3. NOT A PROBLEM FOR UNDERLYING PRIORS
    4. UNSIGNED JUDGMENT CAN BE USED TO PROVE ENHANCEMENT
  13. ERRONEOUS DISMISSAL OF PROBATION BY THE COURT WON'T AFFECT FINALITY OF THE CONVICTION
  14. MANDATORY JAIL TIME AS CONDITION OF PROBATION-REPEAT OFFENDERS
  15. IF YOU ALLEGE MORE PRIOR DWI'S THAN YOU NEED, MUST YOU PROVE THEM ALL?
    1. YES
    2. NO
  16. PROOF THAT PRIOR DWI IS WITHIN 10 YEARS OF OFFENSE DATE
    1. ONLY ONE OF THE TWO PRIORS MUST BE WITHIN 10 YEARS (FOR DWI OFFENSES PRIOR TO 9-1-01)
    2. PROOF OF 10 YEARS NOT NECESSARY
    3. THE 10 YEAR RULE FOR OFFENSES FROM 9-01-01 TO 8-31-05
    4. THE 10 YEAR RULE'S DEMISE DOES NOT VIOLATE EX POST FACTO LAW
  17. JUDGE MAY NOT TERMINATE OR SET ASIDE DWI PROBATION EARLY
  18. INTRODUCED JUDGMENT AND SENTENCE PRESUMED PROPER
    1. NO WAIVER OF RIGHT TO JURY TRIAL
    2. IN THE ABSENCE OF JUVENILE TRANSFER ORDER +
  19. PROBATED DWI CONVICTIONS UNDER 6701L MAY BE USED TO ENHANCE NEW DWI OFFENSES
  20. MISDEMEANOR PRIORS ARE VALID WHEN DEFENDANT WAIVES JURY WITHOUT AN ATTORNEY
  21. DWI SENTENCE MUST INCLUDE JAIL TIME
  22. ILLEGAL SENTENCE ENFORCEABLE IF DEFENDANT ASKED FOR IT OR AGREED TO IT
  23. EXPUNCTION WILL NOT ALWAYS RENDER UNDERLYING FACTS OF CASE INADMISSIBLE IN PUNISHMENT PHASE
  24. FELONY DWI CAN BE THE UNDERLYING FELONY IN A "FELONY MURDER" CHARGE
  25. DWI W/CHILD CAN BE THE UNDERLYING FELONY IN A FELONY MURDER CHARGE
  26. INVOLUNTARY MANSLAUGHTER PRIOR MAY NOT BE USED TO ENHANCE A DWI TO A FELONY

XXV. COLLATERAL ESTOPPEL/DOUBLE JEOPARDY

  1. JUSTICE COURT FINDINGS
  2. PROBATION REVOCATION HEARINGS
  3. ALR HEARINGS-NO DOUBLE JEOPARDY
    1. ALR SUSPENSIONS BASED ON BREATH TESTS
    2. ALR SUSPENSIONS BASED ON BREATH TEST REFUSALS
  4. ALR HEARINGS: NO COLLATERAL ESTOPPEL
  5. NO DOUBLE JEOPARDY BAR TO PROSECUTING DEFENDANT FOR BOTH
    1. DWI & DWLS
    2. DWI & FSRA
    3. FELONY DWI & INTOXICATION ASSAULT
    4. DWI & CHILD ENDANGERMENT
  6. OCCUPATIONAL DRIVER'S LICENSE/ALR SUSPENSIONS
  7. NO CONFLICT BETWEEN "DUI" AND "DWI" STATUTE
  8. NO CONVICTION FOR BOTH INTOXICATION ASSAULT AND AGGRAVATED ASSAULT SBI
  9. EFFECT OF LOSING ONE BT THEORY AT FIRST TRIAL ON SUBSEQUENT TRIAL
  10. COLLATERAL ESTOPPEL BARS INTOXICATION MANSLAUGHTER TRIAL ON DIFFERENT INTOXICANT
  11. NO DOUBLE JEOPARDY WHERE FAULTY UNDERLYING DWI PRIOR ALLEGATION DENIES COURT JURISDICTION

XXVI. PUTTING DEFENDANT BEHIND THE WHEEL

  1. DEFENDANT STATEMENT THAT HE WAS DRIVER = SUFFICIENT
  2. SUFFICIENT CORROBORATION OF "DRIVING/OPERATING"
  3. INSUFFICIENT CORROBORATION OF "DRIVING"
  4. EVIDENCE OF INTOXICATION AT TIME DEFENDANT WAS DRIVING
    1. INSUFFICIENT
    2. SUFFICIENT

XXVII. CONDITIONS OF PROBATION - LIMITATIONS

  1. STAY OUT OF BARS-CHANGE JOB = OK
  2. DENIAL OF PROBATION DUE TO LANGUAGE BARRIER-PROPER
  3. ORDER OF RESTITUTION PROPER IF DAMAGE CAUSED BY OFFENSE COMMISSION

XXVIII. NO J.N.O.V. IN CRIMINAL CASES

XXIX. COURT OF APPEALS SHOULD NOT RE-WEIGH EVIDENCE

XXX. MISDEMEANOR APPEAL BOND CONDITIONS

XXXI. INTERLOCK DEVICES

  1. AS A PRE-TRIAL BOND CONDITION
  2. AS A CONDITION OF PROBATION
  3. AS PROOF OF PROBATION VIOLATION

XXXII. JUDGE MAY CHANGE JURY SENTENCE OF JAIL TIME TO PROBATION

XXXIII. PLEA OF GUILTY TO JURY = JURY ASSESSES PUNISHMENT

XXXIV. TRIAL COURT MAY NOT DISMISS WITH PREJUDICE

TABLE OF AUTHORITIES