I've got a defendant with 11 prior dwi charges (not including stuff pled to deadly conduct and the like.). He's currently indicted with two prior felony dwi convictions in the second paragraph (jurisdictional) and another prior felony as an enhancing punishment to get to 2-20.

Here's my question. Assume for a minute that I can find good copies of all the judgements out there.

Can I use two misdemeanor DWI's as jurisdictional enhancements then use a prior DWI felony that also relies on the same two misdemeanors as one of two sequential felonies to make this defendant a habitual offender?

Can the 25-life depend on a felony which was derived as such by the same misdemeanor convictions used jurisdictionally on the current offense?

Next question: If I am unable to find all the judgments I would like to throw at this guy, what alternative methods of proving these former charges?

Does anyone think I'm over-reaching by trying to habitualize this guy?

[This message was edited by Philip D Ray on 11-06-06 at .]

You can certainly use felony DWI judgments to habitualize a felony DWI, even if those prior felony DWI cases were themselves enhanced by prior misdemeanor DWI cases you are now using to make the current DWI a felony. I hope that makes perfect sense.

No, it is not overreaching to habitualize a felony DWI defendant. The man is a drunk driving murder waiting to happen.

Does your reluctance come from thinking he just has a drinking problem? There is nothing in the disease of alcoholism that forces a person to drive after achieving a drunken state. The decision to drive, especially after 11 prior convictions, is a selfish decision to endanger innocent people.

If this guy made a habit of going to the town square and shooting a handgun in the air, would you feel the same reluctance to prosecute with the maximum punishment?

Add deadly weapon notice, too.

We have had juries give life for DWI. Most of those had far fewer than 11 prior DWI's. I'd put on every prior (you can put on that he was arrest for DWI, but pled to something else) and call prior probation officers to show the help that was offered but refused. Good Luck.

We were able to obtain a 99 year verdict on an 8th DWI here in Parker County in August.

With respect to proving the priors:

Don't just use pen packets of the prior felony convictions. Make sure that you get the indictments (and any amdendements to the indictments)as well as the entire plea packet from the sentencing county. Generally a Defendant is going to plead true to all the jurisdictional enhancement paragraphs which were listed by the Defendant's name, Cause No., Court and County. You can use that, in conjunction with the driving packet, to prove up identity on the misdemeanor convictions.

I tend to chomp at the bit when it comes to enhancing cases. I am interested in hearing other venue's perspective on lifetime drunks. As a jury member, if I had all the information I'm looking at now, I'd hold out for 60+ and nothing left.

So, it's not reluctance, rather just still trying to learn the difference between small town prosecution and larger jurisdiction perspectives. Someone suggested that I was playing 'gunner' again.

What part of don't endanger your fellow citizens' lives, children and property did you not understand.

By the way, no worries about the Philip Ray he is almost as hard nosed as JB, its just that Potter County is to neighbor Randall County what Travis County is to our tougher county to the north.

You mean where the beef packing plant is located, right?

I would echo what everybody has been saying -- go for the habitual enhancement and hang in there for a 60+ year sentence. We've had juries give sentences of 99 years and life for DWI offenders with your guy's kind of record.

I'm curious, though, about what kind of felony DWI you have where you use one enhancement and get him to a first degree range rather than a second. Is it an intox manslaughter?

It sounds like you are planning on moving one of the prior convictions from use under 49.04 to use under 12.42(d). That will probably require an amended indictment to avoid a Phillips (964 S.W.2d 735) pleading error.

Jeff: Actually, what I have is 3 prior felony DWI judgments. We're tracking down the underlying misdemeanors so that we can use the felonies as punishment evidence instead of jurisdictional priors.

Clay: Thanks! And, yes there's a touch of culture shock for me here.

Martin: Yes. If I move something out of the jurisdictional paragraph I'll likely need to re-indict. Of course if we can get proof of his fourth DWI felony charge, I'll just notice him up adding that felony charge and he'll be 25 to life using all felony charges. But, I can't make any decisions regarding these priors until I have the papers in my pudgy little paws. The guy's record is a mess: overlapping probations, missing info from TCIC/NCIC and so forth.

quote:

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We're tracking down the underlying misdemeanors so that we can use the felonies as punishment evidence instead of jurisdictional priors.

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Why couldn't you prove up the misdemeanor priors with the findings of true to those priors in one of the felonies, and have a limiting instruction that the felony is being introduced to aid the jury, if it does, in finding that the defendant has been previously convicted in the two prior misdemeanors? Obviously it's better to have the priors themselves, but absent that, is this an option?

You mean ol' prosecutors, trying to lock up some poor drunk when all he really needs is to be publicly embarassed. That'd learn him!

Grits for Breakfast blog

Isn't getting a life sentence for being stupid enough to drive drunk that often embarrassing?

(overheard at daily meeting of lifers anonymous in a TDC Unit)

Drunk: Hi my name is Drunk

Group: Hi Drunk

Drunk: I am doing life for DWI

Group: You sir are a moron and should be ashamed of yourself

Y'all should really check out the comments over on this ex-ACLU-er's blog:

http://gritsforbreakfast.blogspot.com/2006/11/life-for-multiple-dwis.html

Very enlightening stuff, for those of you who don't follow policy issues.

Next time you wonder why the legislature won't strengthen DWI legislation, remember this:

That blogger goes to the Capitol and testifies and lobbies on criminal justice issues.

Do you?

And if not, ... why do expect things to change for the better?

Squeaky wheel get the grease, boys and girls ...

Deaths put focus on repeat DWIs Multiple offenders

Alexandra M. Biesada; Taylor Johnson


Drunken drivers have stolen lives from three generations of Donald
Hensley's family.


In 1963, Hensley's maternal grandmother was killed in Houston County by
a man driving drunk. The man also died in the accident.


In February, the Round Rock man's 32-year-old sister-in-law, Margaret
Elizabeth Hensley, and her 2-year-old son, Michael, were killed near
Pflugerville by an intoxicated San Antonio man who had a prior conviction
for driving while intoxicated.


Hensley said his brother, sister-in-law and their son were on their way
to Temple the night of the fatal accident for a weekend of cattle roping.
"They were pulling a trailer with two horses that were also killed," he
said. His brother, Marvin, survived the accident.


"The fact that 31 years later I still have to deal with the same problem
shows that we haven't done enough," said Hensley, who attended the trial of
Robert Elizondo Lopez, 32, who was charged with DWI in the February
accident.


Although deaths from drunken-driving accidents have dropped by almost
one-third over the past 12 years thanks to raised awareness of the problem,
drivers with multiple DWI convictions still are disproportionately likely
to be involved in fatal crashes, said James C. Fell, chief of the National
Highway Transportation Safety Administration's Office of Alcohol and State
Programs.


Nationwide, about 3 percent of all licensed drivers have had a DWI
arrest within the past three years. But close to 12 percent of intoxicated
drivers involved in fatal crashes have had at least one DWI conviction
within the three years before their crash, Fell said.


In Texas, 125,941 of the 352,372 drivers arrested for DWI from 1987 to
1990, or 36 percent, were repeat offenders, according to the safety
administration.


In August, Lopez pleaded guilty to involuntary manslaughter and was
sentenced to 14 years in prison. "He must serve seven years before he is
eligible for parole," Hensley said.


"In my opinion, that's no justice at all. There were tons of reasons
this guy shouldn't have been driving at all," Hensley said, citing Lopez's
prior DWI conviction and lack of a valid driver's license.


In a more recent case, Gregory E. Cook, who authorities say was drunk
when he drove into a sewage pond near Wimberley on Sept. 25, killed himself
and his eight- and 10-year-old daughters in the accident.


Cook apparently circumvented a breath-analyzing device, called an
ignition interlock, installed in his car by having one of his daughters
breathe into it to start the car, investigators have said.


Cook, who had three DWI convictions, had been sentenced to probation in
the summer as a first offender and was able to stay on probation despite
obvious violations within a month of his sentence.


Shirley Draper, the girls' mother, has been indicted on two counts of
injury to a child and two counts of child endangerment for allowing the
girls to go with Cook, Draper's ex-husband.


The crash in Wimberley was the tragic consequence of treating repeat
DWI offenders as if they are first-time offenders, said Bill Lewis, public
policy liaison for the Texas chapter of Mothers Against Drunk Driving.


"As a third-time offender, Cook should have had his license suspended
and should have been in jail," Lewis said. "I'd like to see a way to
permanently revoke a person's driver's license."


In November, a Dallas man with seven previous felony drunken-driving
convictions was sentenced to life in prison for an accident in which Fort
Worth police officer Alan Chick was killed.


In arguing for a life sentence for the man, Eugene Standerford,
prosecutors told jurors it was shameful that he was free to be drunk and
driving on Dec. 22, 1993, when he struck and killed Chick, who had stopped
to help a stranded motorist.


Fell said the National Highway Transportation Safety Administration has
been examining sanctions to discourage the relatively small number of repeat
offenders, who are involved in more than their share of fatal
drunken-driving accidents.


They include:
o Putting a zebra-stripe tag on the license plate of a car whose driver's
license has been suspended. Police in Portland, Ore., are using the stripe
as probable cause to stop a vehicle if it is sighted on the road.
o Ohio, California and other states are experimenting with laws to impound
the vehicles of drunken drivers. "It's left to the judge's discretion," Fell
said. "They usually don't do it unless the offender is incorrigible and jail
isn't the answer."
o Another option, which failed in the Wimberley case, is the ignition
interlock.
o In Texas, an administrative license revocation law is set to take effect
Jan. 1. It should aid in the fight against drunken driving, said B.J.
Lashley-Hassell, victim services coordinator for the MADD Heart of Texas
Chapter.


Currently, blood alcohol test results are used only for criminal DWI
proceedings. When the license revocation law goes into effect, test results
also will be used to determine whether a driver's license should be revoked
as an administrative action.


A driver who fails or refuses a blood alcohol test will receive a notice
of license suspension on the spot from the arresting officer. Drivers will
have 15 days to request a hearing before an administrative law judge to
contest the suspension.
(from graph)
DWI offenders with licenses
Number of drivers with repeat DWI offenses who still have Texas driver's
licenses.
Number of DWI offenses Number of drivers with Texas license
---------------------- ------------------------------------
1 524,722
2 131,902
3 41,489
4 14,649
5 5,761
6 2,405
7 1,111
8 499
9 321
10 140
11 96
12 41
13 35
14 19
15 9
16 5
17 3
18 0
19 2
20 1
21 0
22 1
23 1
24 0
25 0
Source: MADD, Texas chapter

I read through the blog posts. It seems that many of the posters believed that it isn't right to give a chronic drunk driver who probably suffers from the disease of alcoholism a life sentence as if DWI was the same as murder or sexual assault in gravity. To me, they missed the point. Sometimes the only way to stop somebody from continuing to drive while intoxicated, thus putting everyone on the roads around them on grave danger, is to lock the person up. Before an alcoholic can be effectively treated, he or she must accept that they are alcoholics and want to stop drinking. The incarceration is not a punishment for being alcoholics; it is a punishment for repeatedly choosing to operate a deadly weapon while intoxicated.

Janette Ansolabehere

quote:

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It seems to me that if a defendant continues to commit a crime "regardless" of punishment, especially in cases of physical addiction as with alcohol or drugs, increasing punishments is irrational and itself arbitrary, precisely because you know up front it won't help, except as the MOST expensive way to keep him from driving.

---

(quote from grtisforbreakfast)

It's not irrational and arbitrary - when rehabilitation fails, deterrence has failed, and retribution (punishment) has failed, incapacitation (taking away the means for the person to commit the crime - typically through incarceration) becomes the only solution. Criminologists would agree with this. There are only four theories of punishment (rehabilitation, deterrence, retribution and incapacitation). If gritsforbreakfast can propose a solution that would work short of incapacitation once the habitual defendant has not been stopped by the other three, I would love to hear it, because allowing habitual intoxicated drivers to continue driving intoxicated is NOT an option (and not all cities have sufficient public transportation as Austin does to support taking someone's car away from them - although that really should be the defendant's problem, not mine). And I don't say this to be confrontational - I just don't know of any other way to solve the problem than to remove them from society rather than waiting for them to kill a family before it becomes ok to lock them up. We're talking people with numerous convictions - that doesn't even count the number of times they weren't caught.

Well, I took down my post here to remove attention from the conversation. I started getting anonymous emails from very charming people. Likely the person adding comments as 'anonymous' thought it would be fun to explain his/her opinions in a more personal manner. I've since blocked that email server from sending me drivel.

I thought talking to some of these people who disagree would give me some insight into possible jury conversations on a case like this. Unfortunately, what I learned is to be less helpful. And, that's a shame.

For another good article on why these cases should be treated seriously, read Warren Diapraam's article: Serious Facts Require Serious Charges: Combating Habitual DWI Offenders Who Kill