Texas State Senator Jane Nelson, R-Flower Mound, today announced plans to pursue legislation in the 2011 legislative session to toughen laws against repeat drunk drivers.

Details.

What would you like to see in that bill?

If the laws are going to get even more strict on repeaters, then there needs to be some help for us in proving up these priors.

After cutting my teeth on misdemeanor DWIs and learning the ins and outs of trying them, I have found the hardest part about the felonies is proving up the priors! Finding a probation officer out of county who remembers the guy, or getting a version of fingerprints that a local expert can use...it's a new circus every trial. This may not be as difficult in larger jurisdictions, maybe the AFIS or something helps, but in our locale, it's tough for any case that comes in with an out of county prior, or a local prior older than 5 years.

Hate to complain without a solution, but I don't even know exactly what I would ask for to make this situation better.

Many states require the defendant to challenge the accuracy of a stated criminal history. In other words, there is a presumption that a criminal history is accurate absent challenge.

During the Punishment Standards Commission rewrite of the Penal Code, there was a proposal to shift the burden to the defendant to challenge a criminal history. As I recall, the defendant had to file an affidavit, swearing he had NOT been convicted of some alleged offense before the State had to present pen packets and such.

Obviously, that proposal didn't become law, but we did find that most states had some version of that sort of presumption in dealing with sentencing. Of course, in most states, the judge does sentencing.

All of this might not help for offenses like DWI, where Texas makes the prior convictions an element of the offense for the purpose of moving from misdemeanor to felony, but it was an idea.

Make breath test refusal a Class B misdemeanor! Or make DWLI due to ALR on a refusal a class A with mandatory jail time. I'd happily trade the broken driver responsibility fees for that one.

Allow the use of one prior felony DWI conviction to enhance any subsequent DWI to a felony. This would not improve the situation Suzanne describes in every case, but would eliminate the necessity of trying to prove up misdemeanor priors. My experience has been that prior felony convictions are usually easier to prove up since there are OCA form judgments, pen packets, and community supervision officers are more likely to remember a felony probationer if for no other reason than that they are typically on probation for a longer period of time. There is not really a good defense argument against this, since the issue of the prior misdemeanor convictions is really res judicata if there is a prior felony DWI (3rd). If there is a prior felony DWI (child), that should also make any subsequent offense a felony. Just my 2 cents.

Larry-
That would be fine if you wanted to also give up the habitual felon enhancement. One of the reasons many DWI 3ds are not currently used to enhance a 4th or subsequent DWI is that you can reuse the misdemeanors and then use the prior felony for the habitual paragraph. However, I have to wonder if a defendant has already plead true to those misdemeanor enhancements previously, can that admission alone be used in a 4th or subsequent DWI without having to relitigate them or jeopardizing the habitual offender status?

How about a "Continuous DWI Offense" akin to Continuous Sexual Abuse of a Child under PC21.02 or Violence Against Family under PC25.11. How many times have you seen that offender who racks up 2, 3, or more arrest before first one even gets a trial date? Then to twist the knife a little more, defense counsel will ask you to agree to 12.45 some of the subsequent arrests.

I certainly applaud the senator's intent, but perhaps I'm feeling a bit fatalistic in asking if her proposed solution would make a difference? Offenders are still going to drive.

Still, if I'm making a christmas list, I'd say I'd go along with the previous idea regarding the priors . . .

I have found that between fingerprints, driving packets, and jail records filed with a business records affidavit, I can prove up identity on nearly all my DWI priors. The trick is that it takes time and getting started early since the business records have to be filed ahead of trial and sometimes it takes a while to get what you need from the clerks/jail/DPS. Don't forget that you can also prove up your priors by introducing the judgment from the next level offense (Class A, felony) with a true plea/finding that the other prior resulted in a conviction. You'll need the judgment + the information/indictment for that so you know which prior(s) they pled to.

Intoxication Assault should be higher than a third degree felony. I've seen people with severe, life changing injuries, and all we can give a defendant is 10 years? (That's why we've sometimes been indicting Intoxication Assault as Aggravated Assault -- to get it to a second degree felony.) The permanent loss of a DL doesn't mean as much. It will just mean misdemeanor prosecutors trying more DWI 2nds. Plus, it assumes that people without driver's licenses don't drive. We all know that they drive anyway.

No appeal bonds with affirmative finding of a Deadly Weapon!

Permanent license suspension on a Second just means more refusals, more trials, more money for defense lawyers, and ultimately, fewer convictions. And more people driving without licenses. If everyone is really so serious about DWI, stop messing around with fine print, add-ons, and below-the-line costs like the surcharge. Bump Seconds up to State Jail; First to Class A; make refusal an actual crime with worse consequences than DWI; and for heaven's sake, take away the "right" to refuse in misdemeanors. Why are we still handing out three bites at the apple? There's still the "it's just a misdemeanor" mentality out there. Stop it.

I am still a big fan of making a refusal a crime and treating it the same as a DWI conviction. Allowing a refusal to enhance subsequent DWI offenses and Subsequent refusals.

Jeff, that's a good idea. I had thought of that, but then wondered if that would be sufficient to show that one prior was a second and included the first prior already. It will help me on the one I've got pending for trial next week.

I just lost one with blood evidence, solely because the jury had issues with the priors, so it really brought home how what seems so simple to us is not to lay persons and the jury can get really hung up on priors--old, weird language, was it really him, etc.

An easy way to prove up most prior DWI convictions is with the help of the Def's Certified Driving Record from DPS. This will list the Def's prior DWI convictions and will include the county, the court and the cause number. The record will have the def's full name, Tex. D/L number, and DOB. If your def. had his D/L on him when he was stopped, the officer will have noted the number in his report. So, at trial, have the officer state the D/L number and write it on a chalkboard or something. Then introduce the Certified Driving Record, and then introduce the certified priors mentioned in the Certified Driving Record.

If the def. did not have his D/L on him at the time of his stop, you have to go deeper. You can get a certified copy of his jail card when he was arrested for each offense, which will include his photo and a full set of his F/Ps. You need a fingerprint expert to compare his F/Ps with the ones on the jail card.

Also, if you ask the clerk where the def. has a prior to include a certified copy of the def's bail bond papers, you can often find good identifying info. Sometimes they have a fingerprint, often they have the def's address, tel. number, SSN, etc. etc. If these match the info he gave the arresting officer or the jailers the night of his arrest in your case, you've got it made in the shade.

I believe the best improvement they can make in the DWI law is to make a breath or blood test refusal an equivalent crime to DWI such that it can be used interchangeably to enhance one another. I understand Wisc. or Minn. has such a law.

The DPS has a video of an experiment conducted in the 1990s by A&M on the effects of intoxication on driving ability. The film shows the participants being tested driving around traffic cones, etc. sober and then they got everyone up to a BAC of 0.04. All 75 or so people were impaired. It is a very powerful video. Have a statute that states the state can show that video in intoxication cases.

Give us back the ability to plead DWI 1st to deferred, with the caveat that a subsequent offense can still be enhanced even if deferred was successfully completed. I heard last time that even MADD wasn't opposed to this; they were finally aware what a backlog of cases it creates for everyone when no one in Texas will plead to a DWI.

Otherwise, I agree that refusing to provide a specimen should be a separate offense. But otherwise, I can't think of much else that will further deter the actual conduct. Maybe it's time to look at seizures of vehicles involved in misdemeanor DWI offenses? Most people would fear the sting of that somewhat immediate consequence.

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RS 14:98.2

�98.2. Unlawful refusal to submit to chemical tests; arrests for driving while intoxicated

A. No person under arrest for a violation of R.S. 14:98, 98.1, or any other law or ordinance which prohibits operating a vehicle while intoxicated may refuse to submit to a chemical test when requested to do so by a law enforcement officer if he has refused to submit to such test on two previous and separate occasions of any previous such violation.

B.(1) Whoever violates the provisions of this Section shall be fined not less than three hundred dollars nor more than one thousand dollars, and shall be imprisoned for not less than ten days nor more than six months.

(2) Imposition or execution of sentence shall not be suspended unless one of the following circumstances occurs:

(a) The offender is placed on probation with a minimum condition that he serve two days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program.

(b) The offender is placed on probation with a minimum condition that he perform four eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, participate in a court-approved substance abuse program, and participate in a court-approved driver improvement program. An offender who participates in a litter abatement or collection program pursuant to this Subparagraph shall have no cause of action for damages against the entity conducting the program or supervising his participation therein, including a municipality, parish, sheriff, or other entity, nor against any official, employee, or agent of such entity, for any injury or loss suffered by him during or arising out of his participation in the program, if such injury or loss is a direct result of the lack of supervision or act or omission of the supervisor, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the entity or its official, employee, or agent.

Acts 2003, No. 543, �1.

GMMcDonald, you apparently have not watched very many DWI videos. If you did, you would know that about 99% of all DWI suspects have very bad knees and or backs which make it impossible for them to complete the very easy and simple FSTs. How are people that badly bunged up going to be able to pick up litter?

Let's get real here, people!

I didnt take a position on it. I was just showing you what the LA version looked like.

Although we could create a new crime for refusal, I wouldn't mind simply adding it to the charge of 37.09 tampering with evidence. The defendant has agreed when he/she applied for licensure that they would provide such evidence when requested, yet they refuse such requests when asked specifically to hinder the availability of such evidence at trial.

I also like the suggestion of the defendant having to file an affidavit swearing he has not been previously convicted before the state has to prove up the priors. I also like the suggestion that a prior felony can be used to enhance a current offense to a felony.

Terry, I have seen that video and would love the ability to play it for jurors. It would certainly help with the unofficial defense of "Well, he wasn't that drunk..."

While we are wishing, DWI with a child is a state jail felony, regardless of how many children are in the vehicle. It annoys me that defendants are able to essentially buy one and get the others free. What about doing it like theft, possession of ID info, and some of the other crimes where more childrens' lives risked increases the punishment?