Jessica Frazier's DWI Case Law

I. Information/Charging Instrument

A. MENTAL OR PHYSICAL FACULTIES

B. "PUBLIC PLACE" IS SPECIFIC ENOUGH

C. STATE DOES NOT HAVE TO SPECIFY WHICH DEFINITION OF INTOXICATION IT IS RELYING ON IN THE INFORMATION

D. NO MENTAL STATE NECESSARY IN DWI CHARGE

  1. PRE §49.04
  2. POST §49.04

E. UNOBJECTED TO ERROR IN CHARGING INSTRUMENT

F. READING DWI ENHANCEMENT AT WRONG TIME

G. DWI W/CHILD - ONE CASE PER DRIVING INCIDENT

H. STATUTE OF LIMITATION FOR DWI 3RD OR MORE

II. Voir Dire

A. PROPER QUESTION/STATEMENT

B. IMPROPER QUESTION/STATEMENT

C. 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
  6. LYING TO THE COURT DOES NOT AUTOMATICALLY MAKE A JUROR “DISABLED” WITHIN THE MEANING OF CCP 36.29

D. DEFENDANT HAS 6TH AMENDMENT RIGHT TO A PUBLIC TRIAL= VOIR DIRE

V. Basis for Vehicle Stop - Legal Standard

A. OFFICER’S MISTAKE OF FACT/LAW WILL NOT MAKE STOP ILLEGAL.

B. TICKETS THAT PROVIDED BASIS FOR STOP INADMISSIBLE

C. 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
  6. ANONYMOUS TIP FROM HITCHHIKER
  7. ANONYMOUS TIP FROM TRUCK DRIVER
  8. ANONYMOUS TIP - INSUFFICIENT DETAILS
    State v. Garcia, No. 03-14-00048-CR, 2014 WL 4364623 (Tex.App.-Austin 2014). 

D. BAD DRIVING/CONDUCT NEED NOT = CRIMINAL OFFENSE

E. "COMMUNITY CARE-TAKING FUNCTION" (CCF)

  1. APPLIES
  2. DOESN'T APPLY

F. OFFICER'S ARREST AUTHORITY WHEN OUTSIDE JURISDICTION 

  1. FOR A TRAFFIC OFFENSE
  2. CAN STOP AND ARREST FOR "BREACH OF PEACE"
  3. TO MAKE ARREST FORDWI
  4. FAILURE TO NOTIFY OFFICERS WITHIN JURISDICTION DOES NOT VIOLATE EXCLUSIONARY RULE
  5. CITY VS. COUNTY-WIDE JURISDICTION

G. PRETEXT STOPS - NO LONGER BASIS FOR SUPPRESSION 

H. OPERATING VEHICLE IN UNSAFE CONDITION

I.  FAILING TO DIM LIGHTS

J. RAPID ACCELERATION/SPINNING TIRES 

  1. YES
  2. NO

K. WEAVING WITHIN LANE/FAILING TO MAINTAIN SINGLE LANE 

  1. WEAVING

L. DEFECTIVE TAIL LAMP OR BRAKE LAMP AS BASIS FOR STOP

  1. NO
  2. YES

M. MUST RADAR EVIDENCE MEET KELLY TEST?

  1. YES
  2. JUDICIAL NOTICE OF RADAR
  3. RADAR MEETS 1ST PRONG OF KELLY TEST
  4. LIDAR RADAR AS SOLE BASIS FOR STOP WITHOUT PROOF OF RELIABILITY IS INSUFFICIENT
  5. RADAR NOT NEEDED TO JUSTIFY STOP FOR SPEEDING

N. CITIZEN'S ARREST FOR "BREACH OF THE PEACE" AS BASIS FOR STOP

O. SIGNAL VIOLATIONS

  1. TURNING/EXITING WITHOUT A SIGNAL
  2. FAILING TO TIMELY SIGNAL INTENT TO TURN

P. "FOLLOWING TOO CLOSELY"- SUFFICIENT DETAIL?

  1. NO
  2. YES

Q. DRIVING UNDER THE POSTED SPEED LIMIT

  1. INSUFFICIENT ON THESE FACTS
  2. SUFFICIENT ON THESE FACTS

R. APPROACHING A VEHICLE THAT IS ALREADY STOPPED 

  1. ENCOUNTER
  2. NOT AN ENCOUNTER
  3. APPROACHING DEFENDANT OUTSIDE OF AND AWAY FROM VEHICLE = ENCOUNTER

S. PLATE OBSCURING STATE SLOGAN AND IMAGES PROVIDES BASIS FORSTOP

T. DRIVERS LICENSE CHECKPOINT

  1. UNREASONABLE
  2. REASONABLE

U. VEHICLE STOPPED AT LIGHT

V. PASSING ON IMPROVED SHOULDER

W. OBJECTIVE FACTS CAN TRUMP OFFICER'S SUBJECTIVE BELIEF ANDSUPPORT STOP

X. REVVING ENGINE AND LURCHING FORWARD SUFFICIENT BASIS FOR STOP

Y. DRIVING LEFT OF CENTER ON UNDIVIDED ROAD WITHOUT CENTER STRIPE

Z. BASED ON RUNNING VEHICLE FOR INSURANCE ON COMPUTER 

  1. NOT VALID
  2. VALID

VII. Warrantless Arrest DWI Suspect - Offense Not Viewed

A. BASED ON PUBLIC INTOXICATION THEORY

B. BASED ON "BREACH OF PEACE" THEORY

C. BASED ON "SUSPICIOUS PLACE" THEORY 

  1. FRONT YARD
  2. PARKING LOT
  3. HOSPITAL
  4. THE DEFENDANT'S HOME
  5. ACCIDENT SCENE

D. NEED NOT ACTUALLY CHARGE SUSPECT WITH PUBLIC INTOXICATION 

E. IMPLIED CONSENT LAW STILL APPLIES

VIII. Video

A. PARTS OF PREDICATE CAN BE INFERRED 

B. NEW PREDICATE REPLACES EDWARDS

C. OPERATOR QUALIFICATIONS

D. AUTHENTICATION

E. SUPPRESSIBLE ITEMS

  1. INVOCATION OF RIGHT TO COUNSEL
  2. INVOCATION OF RIGHT TO TERMINATE INTERVIEW
  3. EXTRANEOUS OFFENSES - IF OBJECTED TO

F. NOT SUPPRESSIBLE 

  1. AUDIO OF FST'S
  2. FST REFUSAL
  3. VIDEO PORTION AFTER AUDIO SUPPRESSED
  4. VOCATION 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 FST'S /ALPHABET & COUNTING ARE NOT TESTIMONIAL
  8. RIGHT TO COUNSEL - MUST BE CLEARLY INVOKED
  9. RIGHT TO REMAIN SILENT MAY NOT BE SELECTIVELY INVOKED

G. 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 OFSTATION VIDEO

H. SURREPTITIOUS AUDIO RECORDINGS

  1. PRE-ARREST
  2. POST-ARREST

I. DEFENSE RIGHT TO VIEW TAPE BEFORE TRIAL

J.TAPE MADE IN FOREIGN LANGUAGE

K. 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"

L. NO SOUND = NO PROBLEM 

M. MOBILE VIDEO CAMERA TAPE ADMISSIBLE

N. STATE MAY SUBPOENA/OFFER DEFENDANT'S COPY

O. LOSING VIDEOTAPE BETWEEN TRIAL AND APPEAL DOES NOT REQUIRENEW TRIAL

P. PROBLEM OF OTHER STOPS BEING VISIBLE ON DWI TAPE

Q. VIDEO PART OF TAPE MAY BE ADMISSIBLE WITHOUT OPERATOR'STESTIMONY

R. INABILITY TO ID ALL BACKGROUND VOICES NOT A PROBLEM

S. OFFICER'S NARRATIVE ON PERFORMANCE OF FST'S

  1. CUMULATIVE
  2. INADMISSIBLE HEARSAY

T. NO REQUIREMENT THAT POLICE ACTUALLY VIDEOTAPE DWI ARRESTS

IX. In-Court Demonstrations/Exhibits

A. FIELD SOBRIETY TESTS

B. SMELL TEST

C. SMELL & TASTE TEST

D. CHART OF SYMPTOMS OF INTOXICATION INADMISSIBLE

E. CHART OF SYMPTOMS OF INTOXICATION- DEMONSTRATIVE EVIDENCE

F. DEMONSTRATION OF DEFENDANT'S SPEECH 

G. ERROR TO ALLOW BOTTLE OF VODKA TO BE ADMITTED ASDEMONSTRATIVE EVIDENCE 

H. 911 TAPE ADMISSIBLE/NO CRAWFORD VIOLATION:

XIII. Statements by Defendant

A. PRE-ARREST STATEMENTS

  1. ADMISSIBLE
  2. INADMISSIBLE "CUSTODIAL INTERROGATION"

B. "MIRANDA WARNINGS" - RECITATION MUST BE ACCURATE

C. ACCIDENT REPORTS STATUTE HAS NO EFFECT ON ADMISSIBILITY OFDRIVER'S ORAL STATEMENTS

D. DOES HANDCUFFING DEFENDANT PLACE HIM IN "CUSTODY" FOR MIRANDAPURPOSES?

  1. NO
  2. YES

E. TAKING KEY AND DIRECTING SUSPECT NOT TO LEAVE DOES NOT NECC= ARREST

F. STATEMENTS BY DEFENDANT'S HUSBAND - NOT HEARSAY

G. PRE-ARREST SILENCE TESTIMONY/COMMENTS DO NOT VIOLATE 5TH AMENDMENT

H. DEFENDANT ACCOMPANYING OFFICER BACK TO SCENE OF ACCIDENT DID NOT = ARREST:

I. DEFENDANT’S RESPONSE THAT HE WOULD NOT ANSWER CERTAIN QUESTIONS INADMISSIBLE.

J. MOVING DEFENDANT TO ANOTHER LOCATION FOR FST NOT ARREST

XIV. Field Sobriety Tests

A. 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?
  4. IMPROPER FOR TRIAL COURT TO TAKE JUDICIAL NOTICE OF TEST'S RELIABILITY
  5. WITNESS CORRELATING TEST TO BLOOD ALCOHOL CONCENTRATION
  6. VERTICAL GAZE NYSTAGMUS/RESTING NYSTAGMUS
  7. IMPACT OF FAILING TO PERFORM FST'S PER NHTSA GUIDELINES
  8. DVD SHOWING HGN PROPERLY ADMITTED AS DEMONSTRATIVE AID 
  9. HGN TEST DOES NOT HAVE TO BE VIDEOTAPED
  10. IN COURT EXAMINATION OF DEFENDANT FOR HGN  PROPER
  11. NEED NOT INQUIRE ABOUT MEDICAL HISTORY/GLASSES

B. ONE LEG STAND = LAY WITNESS TESTIMONY

C. WALK AND TURN = LAY WITNESS TESTIMONY

D. OFFICER MAY TESTIFY ABOUT SCIENTIFIC STUDIES FINDINGS RE: THE RELIABILITY OF FST'S

E. OFFICERS MAY COERCE SUSPECT INTO PERFORMINGFST'S

F. REFUSAL TO PERFORM FST'S = PC TO ARREST AND EVIDENCE OF GUILT 

G. FAILURE TO EXPLAIN FST'S IN DEFENDANT'S NATIVE TONGUE

H. DRE TESTIMONY ADMISSIBLE

XV. Specific Elements

A. PUBLIC ROAD - PLACE

  1. PARKING LOTS
  2. MILITARYBASES
  3. PARK AS A PUBLICPLACE
  4. DRIVEWAY
  5. MARINA
  6. GATED COMMUNITY
  7. PRIVATE ROAD

B. PROOF OF "STATE"

C. PROOF OF "MOTOR VEHICLE"

D. "NORMAL USE OF MENTAL OR PHYSICAL FACULTIES"

E. ADMISSIBILITY OF ILLEGAL DRUGS TO PROVE INTOXICATION

F. STIPULATING TO AN ELEMENT

XVI. Breath Test

A. IMPLIED CONSENT LAW

B. BREATH TEST PREDICATE

C. INSTRUMENT CERTIFICATION

  1. NEW INSTRUMENT NEED NOT BE RE-CERTIFIED
  2. CERTIFICATION AND MAINTENANCE RECORDS ADMISSIBLE

D. LIMITED RIGHT TO BLOOD TEST

  1. FAILURE TO ADVISE OF RIGHT TO BLOODTEST
  2. NO RIGHT TO BLOOD TEST IN LIEU OF BREATHTEST
  3. OFFICER'S CHOICE WHETHER BREATH OR BLOOD

E. 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

F. BREATH AMPULES NEED NOT BE PRESERVED

G. 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 TOREFUSAL
  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 ARRESTINGOFFICER
  7. CIVILIAN READING WARNINGS NOT NECESSARILY BASIS FOR EXCLUSION
  8. DIC-24 - WORDING .10 OR GREATER - IS CORRECT - THOUGH IT’S NOT TIED TO DRIVING (Note: At the time these cases came down, .10 was the per se standard.)
  9. DIC - 24 IN SPANISH
  10. COMMERCIAL DRIVER’S LICENSE WARNINGS
  11. DIC 23 & DIC 24 DOCUMENTS ARE NOTHEARSAY
  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
  15. DIC -24-KOREAN-LANGUAGE LINE
  16. READING OUTDATED AND WRONG DIC-24 WARNING
  17. READING DIC-24 CAN CONSTITUTE PROOF OF ARREST

H. NOT NECESSARY TO SHOW 210 LITERS OF BREATH

I. BREATH TEST NOT COERCED

  1. EXTRA WARNING REFERRED TO CONSEQUENCES OF PASSING NOTREFUSING
  2. NO EVIDENCE THAT ADDITIONAL WARNING ACTUALLY COERCEDDEFENDANT
  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 NOTVOLUNTARY
  6. INSUFFICIENT  EVIDENCE  OF  CAUSAL  CONNECTION  BETWEEN OFFICER STATEMENT AND CONSENT

J.  STANDARD FOR COERCION CHANGED - ERDMAN OVERRULED

K. BREATH TEST REFUSAL EVIDENCE

  1. AS EVIDENCE OF GUILT
  2. NO VIOLATION OF 5TH AMENDMENT
  3. REASON FOR REFUSAL AND CONDITION OF INSTRUMENTIRRELEVANT
  4. REFUSAL BASED ON INTOXICATION IS STILL A"REFUSAL"
  5. INTOXICATION MAY BE PRESUMED FROM BTR
  6. FAILURE TO FOLLOW BREATH TEST INSTRUCTIONS= REFUSAL
  7. NO VIOLATION OF 4TH AMENDMENT

L. 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
  8. AFTER 2 HOURS NOT SUFFICIENT TO PROVE BAC GREATER THAN .15 AT TIME OF DRIVING BUT SUFFICIENT TO PROVE AT TIME OF TESTING

M. 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 THESAME ROOM
  5. FAILURE TO RECALL OBSERVATION MAY NOT BE FATAL
  6. CLOCK VARIANCE NOT FATAL

N. BREATH TEST DELAY PRECLUDING BLOOD TEST

O. OFFICER MAY REQUEST MORE THAN ONE TYPE OF TEST

P. BREATH TEST ADMISSIBLE AS PROOF OF LOSS OF NORMAL

Q. 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

R. KELLY V. STATE

  1. APPLIES TO BREATH TESTS
  2. FIRST TWO PRONGS OF KELLY TEST MET BY STATUTE

S. PROPER TO OFFER BT SLIPS TO SHOW NO RESULT OBTAINED

T. LOSS OF NORMAL & PER SE LAW EVIDENCE NOT MUTUALLY EXCLUSIVE

U. NO SAMPLE TAKEN = NO DUE PROCESSVIOLATION

V. FAILURE TO TIMELY RESPOND TO REPEATED BT REQUEST = REFUSAL

W. EXTRAPOLATION

  1. IS NOT NEEDED TO PROVIDE DEFENDANT WAS INTOXICATED UNDER CHEMICAL TEST DEFINITION
  2. PROBATIVE VALUE OF BT OUTWEIGHS PREJUDICIAL EFFECT
  3. PREJUIDICE OUTWEIGHS PROBATIVE ( A RIDICULOUS OPINION)
  4. EXTRAPOLATION EVIDENCEIMPROPERLY ADMITTED
  5. IMPROPER ADMISSION OF EXTRAPOLATION EVIDENCE
  6. EVIDENCE OF DRUG INGESTION STILL RELEVANT WITHOUT EXTRAPOLATION
  7. EXTRAPOLATION EVIDENCE PROPERLY ADMITTED
  8. RESULT OF BLOOD DRAWN 5/12 HOURS AFTERARREST WITHOUT EXTRAPOLATION ADMISSIBLE UNDER RULE 403

X. OPERATOR NEED NOT UNDERSTAND SCIENCE BEHIND THE INSTRUMENT!

Y. 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

XVII. Blood Test

A. CONSENT NOT INVOLUNTARYOR COERCED

B. PROCEDURE FOR TAKING BLOOD SAMPLE

  1. OFFICERS MAY USE FORCE TOTAKE BLOOD
  2. SAMPLE FROM UNCONSCIOUS DEFENDANT
  3. USE OF ALCOHOL SWAB BEFOREBLOOD DRAW
  4. WHAT CONSTITUTES A "QUALIFIED TECHNICIAN"
  5. STATE NEED NOT PROVE “RECOGNIZED MEDICAL PROCEDURE”
  6. VARIATIONS FROM STANDARD BLOOD DRAW DON’T  RENDER INADMISSIBLE

C. 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 BLOOD-ALCOHOL CONTENT WITHOUT SUBPOENA
  5. BLOOD SAMPLES DRAWN AT HOSPITAL OBTAINED BY GJ SUBPOENA

    CHAIN OF CUSTODY REQUIREMENTS/PROVING RESULTS

  6. BLOOD TESTED IS SAME AS BLOOD DRAWN
  7. NOT NECESSARY THAT PERSON WHO DREW BLOOD TESTIFY
  8. GAPS IN CHAIN GO TO "WEIGHT" NOT ADMISSIBILITY
  9. NOT NECESSARY TO SHOW WHO DREW THE BLOOD
  10. NOT NECESSARY TO SHOW WHO DREW OR TESTED THE BLOOD!
  11. PROVING HOSPITAL BLOOD RESULTS WITH BUSINESS RECORDS AFFIDAVIT
  12. BLOOD TEST OFFERED WITHOUT TESTIMONTY OF ANALYST SAME PROPERLY ADMITTED:

D. SANITARY PLACE REQUIREMENT

HOSPITAL DRAWN SERUM-BLOOD TEST

E. NEW DPS POLICY ON HOSPITAL SERUM INTERPRETATION

F. HOSPITAL DRAWN SAMPLE

  1. NOT AN ASSAULT
  2. HOSPITAL STAFF NOT AGENTS OF STATE

G. CONSENT TO BLOOD DRAW

  1. ACQUIESCENCE TO HOSPITAL BLOOD DRAW = CONSENT
  2. DEFENDANTS ORAL CONSENT TO DR’S REQUEST SUFFICIENT:

J. 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 CLERICALERRORS 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 MISSTATEMENTS IN WARRANT AFFIDAVIT MAY OR MAY NOT 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
  21. BLOOD NEED NOT BE DRAWN AT LOCATION SPECIFIED IN SEARCH WARRANT
  22. THE NAMED AFFIANT NEED NOT BE THE ONE WHO SIGNS AFFIDAVIT
  23. DIRECT EVIDENCE OF DRIVING NOT NEEDED TO SUPPORT PC IN SEARCH WARRANT
  24. MAGISTRATES WHO SIGNED IS NOT AN ATTORNEY:
  25. REVIEW OF WARRANT AFFIDAVIT SHOULD NOT BE HYPER TECHNICAL

  26. ADMISSIBILITY OF SEARCH WARRANT AND AFFIDAVIT
  27. SEARCH WARRANT AFFIDAVIT DID NOT NAME WITNESS
  28. ELECTRONIC WARRANT
  29. SEARCH WARRANT NEEDED TO TEST BLOOD SAMPLE TAKEN BY HOSPITAL

K. WHEN DEFENDANT CONSENTS, 724.012 OF TRANSPORTATION CODE DOES NOT APPLY

L. OFFICER BLOOD DRAW PROCEDURE "NOT UNREASONABLE" UNDER THE 4TH AMENDMENT AND NON-MEDICAL ENVIRONMENT IS UPHELD

M. PROPER TO BRING OUT IN QUESTIONING DEFENDANT'S FAILURE TO ASKTO RETEST BLOOD SAMPLE

N. TESTIMONY ABOUT DRUG INGESTION AND ITS EFFECTS

  1. IMPROPERLY ADMITTED
  2. PROPERLY ADMITTED

O. DEFENSE MOTION TO DISCOVER LAB RECORDS 

  1. OVERLY BROAD
  2. NOT OVERLY BROAD

P. TESTIMONY ABOUT TRACE AMOUNT OF DRUGS IN BLOOD SAMPLEADMISSIBLE

Q. GAS CHROMATOGRAPH

  1. KELLY TEST
  2. DATA DESTROYED

R. IF STATE IS NOT OFFERING BLOOD EVIDENCE FACT OF BLOOD DRAW PROPERLY EXCLUDED:

S. MISSOURI V. MCNEELY INPACT ON MANDATORY BLOOD LAW 

  1. CASES HOLDING BLOOD DRAWN WAS UNLAWFUL
  2. MCNEELY VIOLATION – HARMLESS
  3. MCNEELY CLAIMS CAN BE WAIVED IF NOT RAISED PRIOR TO PLEA
  4. POST MCNEELY CASE WHERE EXIGENT CIRCUMSTANCES JUSTIFIED BLOOD DRAW:
  5. UNCONSCIOUS DRAW REQUIRED SEARCH WARRANT

T. ISSUES SURROUNDING BLOOD TESTING DID NOT RENDER RESULTUNRELIABLE

U. PRESENCE OF TFMPP “MOLLY” IN BLOOD

XVIII. Expert Testimony

A. STATE EXPERT OPINION TESTIMONY-WHAT B.A.C = LOSS OF NORMAL = PROPER

B. IMPEACHMENT - PRIOR TESTIMONY (JOHN CASTLE)

C. EXPERT TESTIMONY ABOUT DWI VIDEO PROPERLY EXCLUDED

D. DEFENSE EXPERT OPENED DOOR TO DEFENDANT'S ALCOHOLISM 

E. RESULTS OF DEFENSE EXPERT'S EXPERIMENT PROPERLY EXCLUDED

F. IMPEACHING EXPERT WITH BRADY NOTICE

G. MUST HAVE EXPERT TO TESTIFY ABOUT DRUG IDENTIFICATION

XIX. Defenses

A. ENTRAPMENT DEFENSE 

B. NECESSITY DEFENSE

C. INVOLUNTARY INTOXICATION DEFENSE/INSTRUCTION 

D. INSANITY/AUTOMATISM

E. NO "VOLUNTARY ACT" INSTRUCTION 

F. DIABETES

G. NO JURY INSTRUCTION ON FAILURE TO ADMINISTER HGN TEST PROPERLY

XX. Jury Charge

A. DEFINITION OF INTOXICATION

B. OBSERVATION PERIOD

  1. NO  CHARGE REQUIRED
  2. CHARGE REQUIRED

C. ALTERNATIVE CAUSATION = NO CHARGE

  1. IN  GENERAL
  2. FATIGUE

D. CHARGE ON WORKING CONDITION OF INSTRUMENT

  1. NOT ENTITLED TO SUCH A CHARGE
  2. ENTITLED TO CHARGE AS TO DPS REGULATIONS

E. NO CHARGE ON BLOOD OR URINE IN BREATH TEST CASE

F. SYNERGISTIC CHARGES

  1. PROPER
  2. NOT FOR "FATIGUE"
  3. NOT FOR "THEORY OF INTOXICATION NOT ALLEGED"
  4. NO EXPERT TESTIMONY NEEDED

G. GENERAL VERDICT FORM

H. SEPARATE VERDICT FORMS?

I. DRIVER'S LICENSE SUSPENSION INSTRUCTION

J. 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 

K. NO DEFINITION OF "NORMAL USE" SHOULD BE GIVEN

L. NO SUCH THING AS "ATTEMPTED DWI"

M. NO CHARGE ON INVOLUNTARY INTOXICATION AND AUTOMATISM DEFENSE IN THIS DWI/PRESCRIPTION DRUG CASE

N. NO MEDICAL EXCUSE INSTRUCTION 

O. NO JURY INSTRUCTION ON FAILURE TO PRESERVE EVIDENCE

P. DEFINITION OF "OPERATING" IN CHARGE

  1. NOT ERROR TO DENY REQUEST
  2. ERROR TO GIVE JURY DEFINITION OF "OPERATING"

Q. NO JURY INSTRUCTION ON BTR CONSIDERED AS EVIDENCE

R. ERROR TO CHARGE ON CONCURRENT CAUSATION IN DWI CASE

S. NOT ENTITLED TO A CCP 38.23 INSTRUCTION 

T. PER SE DEFINITION OPTION SHOULD BE SUBMITTED- LIMITING INSTRUCTION IMPROPER

U. PROPER TO SUBMIT INSTRUCTION THAT INTOXICATION CAUSED BY DRUGS

V. DEFINITION IN JURY INSTRUCTION SHOULD BE LIMITED TO EVIDENCE PRESENTED AT TRIAL

W. WHEN CHARGE SPECIFICALLY USES SUBJECTIVE DEFINITION OF INTOXICATION AND NOT PER SE DEFINITION, THE PER SE DEFINITION SHOULD NOT BE IN JURY INSTRUCTION 

X. DWI GREATER THAN 0.15 INSTRUCTIONS

Y. DWI  .15 CHARGE ERROR

XXI. Jury Argument

A. PERMISSIBLE

  1. DEFENDANT FAILED TO BLOW BECAUSE HE KNEW HE WOULD FAIL
  2. DEFENDANT'S FAILURE TO DO FST'S ON VIDEO
  3. DEFENDANT'S REFUSAL TO DO ANYTHING (i.e. FST'S, 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 EXPERTWAS PROPER

B. IMPERMISSIBLE

XXIII. Priors/Enhancements

A. 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
  5. CERTIFIED DOCUMENTS OFFERED TO PROVE PRIORS NEED NOT BE ORIGNIALS
  6. PEN PACK SUFFICIENT EVEN WHEN NON-CORRESPONDING INFORMATION INCLUDED

B. PRIORS FOR WHICH DEFERRED ADJUDICATION GIVEN

C. 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

D. FAXED COPY OF JUDGMENT & SENTENCE ADMISSIBLE

E. ENHANCEMENT OF FELONY DWI WITH NON-DWI PRIORS

F. ERROR IN ENHANCEMENT PARAGRAPH NOT FATAL

  1. WRONG DATE ALLEGED
  2. WRONG CASE NUMBER ALLEGED
  3. WRONGSTATE ALLEGED
  4. WRONG CHARGING INSTRUMENT ALLEGED

G. APPEAL OF REVOKED DWI DOESN'T BAR ITS USE FOR ENHANCEMENT

H. FELONY DWI

  1. ORDER OF ENHANCEMENTS
  2. UNDERLYING DWI PRIORS ARE ADMISSIBLE IN GUILTY/INNOCENCESTAGE
  3. DEFENDANT'S AGREEMENT TO STIPULATE TO PRIORS DOES PRECLUDE THEIR BEING ADMITTED
  4. STIPULATION SHOULD BE ADMITTEDINTO 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 DWl'S ARE NOT ELEMENTSOF FELONY DWI
  12. JURY INSTRUCTION NEED NOT REFER TO PARTICULARS OF THOSE PRIORS
  13. UNDERLYING DWl’S NEED NOT  OCCUR  BEFORE REP AND HABITUAL COUNTS
  14. IF UNDERLYING PRIOR FOUND INVALID ON APPEAL, REMEDY IS TO MODIFY JUDGMENT TO REFLECT MISDEMEANOR CONVICTION

 I. 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 CANNOTBE USED TWICE
  3. WHAT IS NOT "USING A PRIOR TWICE"
  4. PROBATED DWI CONVICTIONS UNDER 6701L MAY BE USED TO ENHANCENEW DWI OFFENSES
  5. USE O F OUT O F STATE PRIORS WITH DIFFERENT DEFINITIONS OF INTOXICATION/IMPAIRMENT
  6. AN OUT-OF-STATE CONVICTION MUST BE A FINAL CONVICTION UNDER TEXAS LAW
  7. PUNISHMENT - STACKING SENTENCES 

J. OPEN CONTAINER

  1. SUFFICIENT PROOF OF
  2. EFFECT OF IMPROPER READING OF OPEN CONTAINER ENHANCEMENT IN GUILT/lNNOCENCE PHASE

K. PROPER TO ALLEGE DATE PROBATION GRANTED AS OPPOSED TO DATE PROBATION REVOKED

L. 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 TOPROVE ENHANCEMENT

M. ERRONEOUS DISMISSAL OF PROBATION BY THE COURT WON'T AFFECTFINALITY OF THE CONVICTION

N. MANDATORY JAIL TIME AS CONDITION OF PROBATION-REPEATOFFENDERS

O. IF YOU ALLEGE MORE PRIOR DWl'S THAN YOU NEED, MUST YOU PROVETHEM ALL?

  1. YES
  2. NO

P. 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 FROM9-01-01 TO 8-31-05
  4. THE 10 YEAR RULE'S DEMISE DOES NOT VIOLATE EX POST FACTO LAW

Q. JUDGE MAY NOT TERMINATE OR SET ASIDE DWI PROBATION EARLY

R. INTRODUCED JUDGMENT AND SENTENCE PRESUMED PROPER

  1. NO WAIVER OF RIGHT TO JURY TRIAL
  2. IN THE ABSENCE OF JUVENILE TRANSFER ORDER

S. MISDEMEANOR PRIORS ARE VALID WHEN DEFENDANT WAIVES JURYWITHOUT AN ATTORNEY 

T. DWI SENTENCE MUST INCLUDE JAIL TIME

U. ILLEGAL SENTENCE ENFORCEABLE IF DEFENDANT ASKED FOR IT ORAGREED TO IT

V. EXPUNCTION WILL NOT ALWAYS RENDER UNDERLYING FACTS OF CASEINADMISSIBLE IN PUNISHMENT PHASE

W. FELONY DWI CAN BE THE UNDERLYING FELONY IN A "FELONY MURDER"CHARGE

X. DWI W/CHILD CAN BE THE UNDERLYING FELONY IN A FELONY MURDER CHARGE

Y. INVOLUNTARY MANSLAUGHTER PRIOR MAY NOT BE USED TO ENHANCE A DWI TO A FELONY

Z. IN DWI2nd TRIAL PRIOR NOT ADMISSIBLE IN GUILT INNOCENSE PHASE OF CASE

Oliva v, State, No. PD-0398-17,  2018 Tex. Crim. App. LEXIS 139

XXIV. Collateral Estoppel/Double Jeopardy

A. JUSTICE COURT FINDINGS

B. PROBATION REVOCATION HEARINGSFuentes v. State, 880 S.W.2d 857 (Tex.App. - Amarillo 1994, pet. ref'd).

C. ALR HEARINGS---NO DOUBLE JEOPARDY 

  1. ALR SUSPENSIONS BASED ON BREATH TESTS
  2. ALR SUSPENSIONS BASED ON BREATH TEST REFUSALS

D. ALR HEARINGS: NO COLLATERAL ESTOPPEL

E. NO DOUBLE JEOPARDY BAR TO PROSECUTING DEFENDANT FOR BOTH 

  1. DWI & OWLS
  2. DWI & FSRA
  3. FELONY DWI & INTOXICATION ASSAULT
  4. DWI & CHILD ENDANGERMENT
  5. FELONY DWI & INTOXICATION MANSLAUGHTER
  6. FELONY MURDER & AGGRAVATED ASSAULT
  7. OCCUPATIONAL DRIVER'S LICENSE/ALR SUSPENSIONS
  8. NO CONFLICT BETWEEN "DUI" AND "DWI" STATUTE
  9. NO CONVICTION FOR BOTH INTOXICATION ASSAULT AND AGGRAVATED ASSAULT SBI
  10. EFFECT OF LOSING ONE BT THEORY AT FIRST TRIAL ON SUBSEQUENTTRIAL
  11. COLLATERAL ESTOPPEL BARS INTOXICATION MANSLAUGHTER TRIAL ON DIFFERENT INTOXICANT
  12. NO DOUBLE JEOPARDY WHERE FAULTY UNDERLYING DWI PRIOR ALLEGATION DENIES COURT JURISDICTION

XXV. Putting Defendant Behind the Wheel

A. DEFENDANT STATEMENT THAT HE WAS DRIVER = SUFFICIENTLY CORROBORATED

B. SUFFICIENT EVIDENCE OF "DRIVING/OPERATING"

C. INSUFFICIENT CORROBORATION OF "DRIVING/OPERATING"

D.  EVIDENCE OF INTOXICATION AT TIME DEFENDANT WAS DRIVING

  1. INSUFFICIENT
  2. SUFFICiENT

XXVI. Conditions of Probation - Limitations

A. STAY OUT OF BARS-CHANGE JOB = OK

B. DENIAL OF PROBATION DUE TO LANGUAGE BARRIER-PROPER

C. ORDER OF RESTITUTION PROPER IF DAMAGE CAUSED BY OFFENSE COMMISSION

D. URINE TEST RESULT FROM UNACCREDITED LAB SHOULD NOT HAVE BEEN ADMITTED

XXX. Interlock Devices

A. AS A PRE-TRIAL BOND CONDITION

B. AS A CONDITIONOF PROBATION

C. AS PROOF OF PROBATION VIOLATION