one of my District Judges is telling me that Sec. 49.045 DWI's ought to be prosecuted as class B misdemeanors so that they can be used for DWI enhancement. Am I reading 49.09 wrong? Anybody else actively prosecuting these? I've had five convictions already in my little county.

For a prior discussion on DWI + child prosecutions, go to this link.

A prosecution for DWI + child is included in the definition for "offense related to the the operating of a motor vehicle while intoxicated." See PC sec. 49.09(c)(1)(A).

The problem is that a reference to DWI + child (sec. 49.045) was not also included in the provision making even a probation a conviction for enhancement purposes, see sec. 49.09(d). In addition, DWI + child was not added to the list of offenses ineligible for deferred adjudication. See CCP art. 42.12 sec. 5(d)(1)(A).

So, if you want to build a DWI criminal history that can be used for future enhancement, you can only get there with a DWI + child by obtaining a final conviction (meaning the defendant was convicted and actually sentenced to state jail). I imagine these things will be cleaned up in the next legislative session. Right, Shannon?

[This message was edited by John Bradley on 02-26-04 at .]

[This message was edited by John Bradley on 02-26-04 at .]

Yes, these shortcomings were pointed out during our Legislative Updates back in Aug/Sept 2003.

John, I have come up with a list of 5 separate statutes that need to be amended to reflect the new offense in 49.045:

PC 49.09(d) - probations as finals
PC 49.09(e) - 10-year rule on priors (or is this OK? )
CCP 42.12, Sec. 5(d)(1) - deferreds
CCP 42.12, Sec. 13 - min. jail terms
FC 51.03 re delinquent conduct

Please send any other "loopholes" to me and I will add them to the list.

Ah, I see, as you so slyly suggest, that the absence of a reference to DWI + child in 49.09(e) works to our favor. There is no time limit on the use of a DWI + child prior in a new DWI.

Frankly, I suggest trying to eliminate the entire section limiting prior DWI's for enhancement to a 10-year period. We don't have such a limitation for sex offenders, thefts or family violence assault. What is so special about DWI?

JB, a bill that would have ended the 10 yr rule on DWI's passed the house, but got locked up in the Senate criminal justice committee . . .

Looks like we'll have to add Trans. Code Chapters 521 (suspension) and 524 (ALR) to the list of things needing to be amended -- 49.045 isn't included in them either.

If anyone knows of others, pass them along.