TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    DWLI new question
Go
New
Find
Notify
Tools
Reply
  
DWLI new question Login/Join 
Member
posted
My assistant and I are discussing 521.457 (f-1) regarding the new DWLI laws.

(f-1) If it is shown on the trial of an offense under this section that the license of the person has previously been suspended as the result of an offense involving the operation of a motor vehicle while intoxicated, the offense is a Class B misdemeanor.

Hypothetical: John Doe is charged with DWI and refuses to blow and receives an administrative suspension for 45 days.

John Doe is driving during his 45 day suspension and is stopped. Now, is this a Class C? Or, is it a Class B? Does his administrative suspension count as "previously been suspended", or is it a "current" suspension.


Any thoughts would be appreciated.
 
Posts: 115 | Location: Andrews, Texas | Registered: June 15, 2001Reply With QuoteReport This Post
Member
posted Hide Post
Class B; it was previously suspended and is also currently suspended.
 
Posts: 1029 | Location: Fort Worth, TX | Registered: June 25, 2001Reply With QuoteReport This Post
Member
posted Hide Post
That is the way I view it as well.
 
Posts: 115 | Location: Andrews, Texas | Registered: June 15, 2001Reply With QuoteReport This Post
Member
posted Hide Post
I am re-thinking my response after reading the bill again.

If the defendant's license is currently under suspension for only a breath test failure or refusal, then it would only be a Class C DWLI. If the license is also suspended for any other reason, you could enhance it to a Class B. The problem is that you would be using the same suspension to charge the defendant with DWLI and using the same suspension to enhance it to a Class B.

It appears to be the similar to a situation where an ex-con is found in possession of a firearm and charged accordingly and you sought to use the same conviction to enhance him, which is prohibited.
 
Posts: 1029 | Location: Fort Worth, TX | Registered: June 25, 2001Reply With QuoteReport This Post
Member
posted Hide Post
It sounds like, though, the intent of the statute was to make driving during a suspension that was alcohol related is a Class B--even if the refusal caused the suspension rather than the actual "offense"--or at least that's the take I got from Shannon on a similar question I posted. I think it's supposed to be a Class B?? But it doesn't really say that in the statute!
 
Posts: 514 | Location: Del Rio, Texas | Registered: April 17, 2006Reply With QuoteReport This Post
Administrator
Member
posted Hide Post
quote:
Originally posted by Ken Sparks:
I am re-thinking my response after reading the bill again.

No fair, Ken! You already convinced me you were right and I was wrong when we first discussed this weeks ago! Razz
 
Posts: 2397 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
Member
posted Hide Post
I think an ALR suspension because of breath-test refusal (or failure) qualifies as an enhancement for a Class B.

If you look at 524.001(3) the code defines "alcohol-related enforcement contact" for purposes of suspensions.

I think the new law was meant to give a break to first time DWLI offenders-- for example, folks who didn't pay a surcharge for no insurance because they didn't change their address on their DL. Maybe the legislative history for 521.457(e) could shed some light on this.

However, that "break" is not available to folks who have had their licenses suspended for any alcohol-related offenses or have already been convicted of DWLI. That makes sense to me.

Anyway, that's what I'll argue on appeal!
 
Posts: 95 | Location: Granbury, Texas | Registered: August 24, 2007Reply With QuoteReport This Post
  Powered by Social Strata  
 

TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    DWLI new question

© TDCAA, 2001. All Rights Reserved.