August 16, 2005, 10:19A. Klement
DWI OPEN CONTAINER HELP!
Trial is next week, your standard DWI breath test refusal with open container of beer in vehicle.
Upon a guilty verdict, Defendant has elected to go to the jury for punishment and is probation-eligible.
Penal Code Section 49.04(c) provides that, in the case of a DWI Open Container, there is a "minimum term of confinement of six days".
However, this language is not repeated in CCP 42.12(13). CCP 42.12(13)(a) sets out mandatory jail time for DWI 1st, 2nd, Intox Manslaughter, etc., but does not again mention the minimum six days for the Open Container.
Defense attorney claims that this means a jury must sentence a Defendant convicted of DWI Open Container to 6-180 days in jail and may probate that sentence. Then there is no mandatory confinement as a condition of community supervision.
Is this correct? Does the "minimum six days" not mean serving this time as a condition of community supervision (as it does in all other Intox offenses?)
I realize that a Judge may sentence a Defendant to any amount of time as a condition of community supervision, but my Judge will not do so unless he is told he "shall".
Thanks for the help!
August 16, 2005, 10:46WHM
The time served as a condition of probation is a separate issue from the "sentence." You can sentence the person to no less than 6 days in jail, but whether that sentence is probated, and how much jail time is assessed, is controlled by 42.12 CCP, not Chapter 49, P.C. Your defense attorney is correct.
I think the intent of the legislature was simply to ensure that such cases did not result in fine only sentences.