Ok, I have a defense lawyer that thinks he has found a loop-hole in the law.

CCP Art. 42.12 Sec. 13 reads in part "If it is shown on the trial of the offense that an analysis of a specimen...showed an alcohol concentration level of 0.15 or more...the court shall require as a condition of community supervision [interlock]".

The defense attorney claims that the code requires a "trial" and if the defendant pleads guilty, interlock is not required. Thus he wants to go Open on all pleas with regards to the interlock.

I've looked up case law to find where a plea is defined as a trial, but no luck. It is such a basic concept that I can't find case law on it.
HELP!

That's the sort of silly legal argument that gives lawyers a bad name.

This comes up every couple of months. I don't have a case citation for you or anything, but I can tell you that if you search Westlaw or Lexis for the phrase "on the trial of the offense" you'll get dozens and dozens of hits in statute. That is just legislative shorthand, and it's used for family violence findings, hate crimes findings, and a bunch of other stuff related to criminal proceedings. It would be absurd for the defense lawyer to argue that the state cannot get a FV finding unless the case goes to a contested trial -- this is no different.

Plus, if you think about it, a plea is like a mini bench trial -- the defendant enters a plea, then the state introduces a written waiver and evidence in support of the verdict (esp. for felonies), and then the judge finds the defendant guilty.

Yeah, what Shannon said.

Another way to say that is: merely waiving a jury and entering a plea of guilty does not mean the defendant is waiving (or avoiding) a trial!

cariann, welcome to the user forum. how did that first post feel?

Shannon is right, that the plea is a trial. You'll notice that all the judgment forms indicate that "both sides announced ready for trial." Your defense may have a point in this only: if he pleads guilty, and you do not "show on the trial" that his BT was at least .15, then the interlock may not be mandatory. In other words, if he pleads and no evidence is introduced, then the judge would be within his/her discretion to forego the interlock.

But his entry of the plea does not prevent you from making whatever showing you want to make on punishment. So if he sets it for a bench trial, just make sure to have your evidence available to prove up the BT.

I think there is not much to add to the input given above but I do want to remind you that you need only show he was .15 or above "at the time the analysis was performed". I was involved in this drafting and this language was used to ensure we would not need to rely on extrapolation to tie the BAC back to the time of driving.

Well, my Judge did not agree with us. According to him, a plea is a hearing not a trial. Therefore, interlock is not manditory, but is always at his descretion. So someone that blows 0.18 does not need interlock in an open plea. However, Judge felt that if it went to the Jury, then interlock is clearly manditory.

Does he get credit for getting it half right?

Once the defense bar gets a hold of this little nugget, we are in trouble. What recourse do we have? Set all 0.15 for trial? Do we have a right for a jury trial? Can we object to Open Plea and force everything to Jury?

Yes, the State has the right to a jury trial same as the defendant. You can't keep him from pleading guilty, but you can at least make it a slow plea to the jury and require the interlock.

The State has a right to a jury trial under State ex rel. Turner v. McDonald, 676 S.W.2d 371 and State ex. rel. Curry v. Carr, 847 S.W.2d 561

File a writ of mandamus next time he denies it.

Putting everything for trial is self-defeating. If the statute is that clear that the Court must/shall put an "interlock" provision in, why isn't this a "mandamusable" (Is this a word?). Sorry that such a serious/clear issue gets misinterpreted.

The legislature did seem to make a distinction between a guilty plea "hearing" and a "trial" in HB 1178 (80th Leg.). Note that amended 1.051(g) refers to a defendant being advised of Faretta admonishments "if the defendant is proceeding to trial," having drawn a distinction between a defendant "entering a guilty plea or proceeding to trial." While this language was obviously designed to address the concern mentioned in Very Dangerous, it does imply there is a distinction between proceeding to trial and entering a plea of guilty.

You are my hero. If anyone can figure it out, you can. You are the ONLY person in law school who understood and could explain Future Interests.