Since the supreme court recently told us that a jury must find the enhancement BRD, has anyone tried one of these and how did you do it?

Put on evidence and request a separate finding in the jury instructions?

quote:

Put on evidence and request a separate finding in the jury instructions?

Yes. As a separate affirmative finding like a deadly weapon allegation.

That's exactly how we've done it -- with a separate question to be answered by the jury along with their answer of Guilty. The advantage is that doing so has allowed me to read the 0.15 enhancement along with the rest of the information at the onset of trial. I've found that getting that little piece of information to the jury before they've heard anything else is very effective.

We had a judge recently declare a mistrial after we read the .15 allegation but later were unable to admit our blood test. The judge also seemed to believe it was wrong to read the .15 allegation before guilt.

So, any specific caselaw that y'all know of that would support the reading of the >.15 enhancement at arraignment? Seems like the safer choice is to put on the evidence and then request the separate finding in the charge?

I voiced the exact same concern a few weeks ago in the following thread: https://tdcaa.infopop.net/eve/f...7098965/m/8717020316

Not much of any answer, unfortunately, but at least you can references some of the answers there. I'm unaware of any authority, but I'll update you if we come up with anything.

I'm curious as to how many of you are actually seeking punishment above that of a Class B. Seems to me the best approach is to plead and prove a Class B DWI and argue in punishment that the sentence should be in the high range to reflect the high BAC. No voir dire issues, no pleading issues, no jury charge issues, no appellate issues, and so on and so on.

Article 36.01 says you don't read enhancement convictions at arraignment. The .15 allegation increases the degree of the offense, so it seems to me it is an issue to be tried in guilt, and therefore read at arraignment. It isn't a prior conviction.

To address the "Why use the enhancement if not seeking punishment above 180 days" question...

The answer around our office seems to be "because probation." 365 days probated is a much heavier boot to drop on someone rather than 180 days probated. While we're not really seeing punishment above 180 days as part of a plea or in post-trial sentencing except in extreme cases, that probation element is something that does come into play when we're dealing with absconders or folks who decide to keep drinking and driving on probation.