Guy arrested this weekend for DWI. His criminal history shows 4 previous arrests for DWI. First one was dismissed. Second one ended up in a conviction for Obstructing Highway (Oct. 2003). Third arrest (10/11/2004) and fourth arrest (11/09/2004) are both in another county and filed, but still pending. My question is, to charge him with DWI-2nd, does his CONVICTION for a first have to come before this ARREST, or just before it goes to court? If I file it today, I'd have to file it as a DWI-1st, because no conviction. But if he gets convicted in the other county on one or both of his other arrests, could I hold off and then charge him with a 2nd or am I just stuck since there is no conviction on the date he was arrested?

you have a DWI 1st. Frustrating isn't it.

Correct. The defendant must commit and be convicted of an offense before he commits the offense you are seeking to enhance. Thus, the filing date is meaningless.

Argh!!! 5th arrest for DWI and supposedly he was on his way to an AA meeting...

Yeah. This is a tough one, I had one lady who had three pending. What would probably have been her fourth, was the fatal accident she had. People in the other car were seriously injured.

We recently had a defendant drive head on into a van with 10 occupants. Victim/driver killed and other 9 occupants seriously injured. Defendant had 2 prior DWI's and was still on probation for them.

Frankly, in my mind, that is a murder.

But, so many Texas laws give the advantage to the defendant. For those first 2 DWI's, he could refuse to provide a breath/blood sample. Now that he has killed someone, though, apparently it is OK to check his alcohol level.

If his prior convictions would have been more than 10 years ago, they would be unavailable for consideration in seeking a felony DWI. But, if he had two prior shoplifting convictions, regardless of their age, and got a third, THAT I could turn into a felony.

Even if I get multiple convictions for the separate intoxication assaults, I can't stack them on the intoxication manslaughter if the convictions are obtained in a single trial. If he had killed each of the occupants, I could get stacked sentences.

Of course, the driver's DL was suspended. What a pointless act, as it is so easy to get an occupational DL.

When will the Legislature wake up on these crimes?

OK, I admit to the alzheimers. But, somewhere in my distant memory, I remember Felony Murder on a DWI 3rd where a death occurred. Wrong?

Harris County got a conviction - defendant was Mark Wayne Lomax. He killed a little girl. Tarrant County also had a case like this too but I don't know who the defendant was. Check your January 2005 Prosecutor - there's information about those cases in there.

John,
I believe that now it does not matter that his previous convictions were more then ten years from the present offense. Under Getts v. State, I believe that the Court of Criminal Appeals decided that if the defendant has two previous convictions within a ten year period of each other then both of the convictions may be used for enhancement purposes.

Tiny Andrews County, out here in West Texas, just recently convicted on Felony Murder in a 3rd DWI death case.

John Pool got a guilty for felony murder DWI on the Mendoza case in Andrews County. Appeal pending.

Richard Alpert / Tanya Dohoney are handling the Jake Strickland case in Tarrant County and received a guilty verdict.

Mark Lomax is on appeal in the Waco Court. Briefs have been filed.

There is currently a pending bill that would alleviate some of the concerns expressed in this post regarding use of priors. Please make sure that DWI bills get your local legislator's attention.

quote:

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Originally posted by John Bradley:
...so many Texas laws give the advantage to the defendant. For those first 2 DWI's, he could refuse to provide a breath/blood sample. Now that he has killed someone, though, apparently it is OK to check his alcohol level.

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That really is difficult to figure out. One guy drives drunk for the first time. One drives drunk, again, after being convicted two, three or five times. One drives drunk for the first time and seriously injures or kills someone. Why is the last guy the only one we can force to give us a sample? The second guy is arguable worse, since he repeatedly commits the same crime. None of them intended or knew they were setting out to kill someone. The fact that someone accidentally died doesn't really change the moral culpability of the defendant, only the degree of damage that he's done. Why do the other guys get to spit in our face just because they were lucky enough to get stopped before they hurt anyone?

You can get a search warrant to obtain a blood sample even if the case is a DWI 1st. This is being done on a regular basis in several jurisdictions including mine. It has proven to very effective, although time-consuming. It would be wonderful if force could be used to compel a blood sample for all intoxication offenses.