With the legislative change driving with an invalid license can be prosecuted as a Class B if the driver has no insurance. My question is can the driver be prosecuted for the Class B invalid license with no insurance and also be prosecuted for a Class C no insurance ticket. Or does this run into an estoppel issue?
I think you can prosecute for both. A similar situation might be charging a defendant with an assault with a deadly weapon and felon in possession of a firearm. The fact of no insurance is not an element of the offense of DWLI / DWLS, but is a factor affecting punishment / level of offense.
Posts: 325 | Location: Texas, USA | Registered: November 16, 2004
I am leaning toward this being a double jeopardy problem. It's one thing to enhance a punishment of a later offense because of a prior conviction, but enhancing something because of a specific circumstance, and then also charging that circumstance separately as a crime seems iffy to me. Kind of like using a prior felony DWI conviction to enhance to a DWI3d (fourth, really) but also as a habitual offender paragraph (which is why the original two misdemeanors should be pled as the underlying 2 offenses and use the felony conviction to habitualize - but that's another subject).
I think the distinction here from Larry's scenario is that not having insurance is not a necessary element of the class C crime of invalid DL, but it IS a necessary jurisdictional element of the class B crime of invalid DL. If it gets charged in county court, it is because of the special circumstance of also not having the insurance. I could see how Larry's scenario would work, because possessing a deadly weapon isn't in and of itself a separate crime, and there are different elements in each offense of agg assault and felon in possession that mean double jeopardy isn't a problem there. But here, if you have to prove no insurance as a basis for the higher jurisdiction of the court, it seems that no insurance is included as an element within the class B invalid DL offense. I would love to hear what others think.
[This message was edited by Gretchen on 09-11-09 at .]
[This message was edited by Gretchen on 09-11-09 at .]
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
I guess I was thinking along the lines of an assault being a misdemeanor, but the use of the deadly weapon making it a felony (thus jurisdiction being in the district court as opposed to the county court), and being able to also charge the offense of felon in possession of a firearm. So the fact of possession / use of the firearm would be used BOTH for invoking the jurisdiction of the higher court AND as the basis for charging a separate offense. However, I see your point re: felony DWI. I guess the difference that I was lookingat is the use of a prior conviction for multiple purposes (punishment level and enhancement) versus using a particular fact (as opposed to conviction) for multiple purposes.
Posts: 325 | Location: Texas, USA | Registered: November 16, 2004
quote:Originally posted by CSS: My question is can the driver be prosecuted for the Class B invalid license with no insurance and also be prosecuted for a Class C no insurance ticket. Or does this run into an estoppel issue?
Uh ... why? What benefit does charging a fine-only offense give you when you have a valid Class B to go on?
Posts: 2429 | Location: TDCAA | Registered: March 08, 2002
I think the difference between this and the assault example is that your Class C no insurance is wholly subsumed in the Class B invalid license. You have to prove the entirety of "driving with no insurance" in order to prove the Class B invalid license. With the assault example, you have two offenses with separate elements that happen to have one element in common -- to prove the assault, you have to show that an assault happened and the weapon was used, and to prove the FiP you have to show that the defendant possessed the weapon and was a felon. They have different elements, even though they both have possession of the gun in common. I don't think you have different elements with the two no-insurance cases.
Posts: 1116 | Location: Waxahachie | Registered: December 09, 2004
Apparently DPS has some hefty penalties for people who are repeat No Insurance Class C offenders. For example, not only is the driver required to provide proof of insurance to get their license reinstated, but they have to continually provide proof of insurance to DPS for 2 years after the conviction in order to keep their license. This provision probably wouldn't apply if we just prosecute the driver for DWLI/No Insurance Class B. That's why we are looking into prosecuting the driver for both the DWLI/No Insurance Class B and the No Insurance Class C ticket.
If the legislature wants to authorize DPS to have the ability to suspend DLs based on the conviction for the DWLI enhanced with FMFR(alone or in conjunction with other priors), then that should probably be addressed in the next legislative session. Also, under Sec. 601.191, a FMFR ticket with a FMFR prior does have a higher fine. If the legislature intends the DWLI enhanced with FMFR to act as a prior FMFR conviction for purposes of enhancement under that section, that should also probably be addressed.
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
Personally, since I would rather see the defendant insured and able to drive (we don't have alternatives out here...no DL means either not working or driving illegally most of the time) - I'm taking the B and telling officers to skip the C. These folks only have so much green stuff....
One condition of probation is the requirement that the defendant obtain / maintain a valid DL - and I'm often willing to look at an early release when that happens.
