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CHARLES B.

“BRAD” FRYE
ATTORNEY AND COUNSELOR AT LAW
LINDEMAN, ALVARADO & FRYE
808 Travis, Suite 1101
Houston, Texas 77002
MEMORANDUM (713) 236-8700
Driving While Intoxicated

This Memorandum has NOT been updated to include the 2009 legislative changes regarding
mandatory blood draws.

This memorandum is intended to acquaint you with the offense of driving while
intoxicated, the elements of proof and evidence necessary for the State to obtain a conviction, the
range of punishment for the offense, and the types of punishment normally considered by courts
when assessing punishment for this offense.

You should know that your situation will depend on the specific facts of your case. What
happens to your case will depend, ultimately, on an assessment of the facts of your particular
situation, your background, your history with the criminal justice system, (if any), and your
current life situation.

While this memorandum contains specific references to statutes and cases, it is not
necessary for you to remember or read all of those references. They are included so that if you
have a more in-depth question, or if you want to check on the statute or the case law authority
cited, you may do so.

Finally, this memorandum is intended to give you general information only. If you have
any questions, you should consult with us.

Elements of the Offense

Like any other criminal charge, the charge of “driving while intoxicated” is made up of
certain “elements.” In the case of a DWI charge, the State must prove certain things, or
“elements,” such as that you were driving a vehicle, in a public place or public thoroughfare,
while intoxicated. If the State fails to prove an “element,” or if an “element” of the charge
doesn’t exist or isn’t true, you may be acquitted of the charge as a whole.

When we evaluate a criminal charge, one of the first things we do is check to see if all of
the “elements” of that charge are supported by the evidence.

“Public Place”

The first “element” we will discuss in reference to a DWI charge is that the State must

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 1
prove that you operated a motor vehicle in a “public place.” A person commits an offense by
driving or operating a motor vehicle in a public place while intoxicated. Penal Code §49.04(a).
Proof of a culpable mental state is not required for conviction of this offense. In other words,
the States doesn’t have to prove that you “intended” to drive while intoxicated. Since proof of a
culpable mental state is not required for this offense, defenses such as insanity are not available.
Reed v. State, 916 S.W.2d 591, 593 (Tex. App.-- Amarillo 1996, pet. ref.).

A “public place” is any place to which the public, or a substantial group of the public, has
access. This includes, but is not limited to, streets, highways, and the common areas of schools,
hospitals, apartment houses, office buildings, shops, and transportation facilities. Penal Code
§1.07(a)(40). For example, the parking lot of a multi-unit condominium complex that is
accessible to a substantial group of the public is a public place for purposes of this definition.
State v. Nailor, 949 S.W.2d 357, 359 (Tex. App.--San Antonio 1997) -- in that case, the court of
appeals held that a hotel parking lot is a “public place” despite having a requirement of an
entrance fee. The definition of “public place” is cast in broad language in the statute. Thus, for
example, the fact that a park’s hours of operation have ended and the public is no longer
supposed to use the park is irrelevant to the determination of whether the place is one to which
the public has access. See Perry v. State, 991 S.W.2d 50, 52 (Tex. App.-- Fort Worth 1998, pet.
ref'
d). An information (the charging instrument filed by the State setting out the allegation that
you committed the crime charged) alleging that the act occurred in a public place without
specifying the place involved is not subject to a motion to quash for lack of specificity. King v.
State, 732 S.W.2d 796, 803-804 (Tex. App.--Fort Worth 1987, pet. ref.).

Intoxication

A person is deemed to be intoxicated for purposes of this offense when he or she does not
have the normal use of mental or physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of two or more of these
substances, or any other substance into the body. Penal Code §49.01(2)(A). The terms
“controlled substance,” “drug,” and “dangerous drug” are defined in the Health and Safety Code.

A person is also considered to be intoxicated when he or she has an alcohol


concentration of 0.08 or more. Penal Code §49.01(1). “Alcohol concentration” is the number of
grams of alcohol per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine.

In a prosecution for driving while intoxicated under the first definition of intoxication,
the type of intoxicant used is an element of the offense. Therefore, an information charging the
defendant with DWI under that definition must allege the type of intoxicant, either singularly or
in disjunctive combination with other types of intoxicant. Garcia v. State, 747 S.W.2d 379, 381
(Crim. App. 1988). The current statute requires that the type of intoxicant be specified in
prosecutions for both driving while intoxicated and intoxication manslaughter under Penal Code
Section 49.08. Saathoff v. State, 891 S.W.2d 264, 265-266 (Crim. App. 1995).

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 2
However, it has also been held that an information alleging the influence of intoxicating
liquor will support a conviction based on intoxication due either to liquor alone or to a
combination of liquor and drugs, when this is raised by the evidence. Sutton v. State, 899
S.W.2d 682, 683-685 (Crim. App. 1995). Moreover, a conviction may be upheld when
intoxication is alleged to be due to liquor and drugs, but there is no evidence of drugs. Dewitt v.
State, 763 S.W.2d 524, 526-527 (Tex. App.--El Paso 1988, pet. ref.).

The definition of intoxication based on alcohol concentration serves to turn the statutory
presumption of intoxication based on an alcohol concentration of 0.08 percent or more into a
legal definition of intoxication. The excessive alcohol concentration does not create an
irrebuttable presumption of intoxication, but rather defines the offense and becomes an element
of it. Forte v. State, 707 S.W.2d 89, 94-95 (Crim. App. 1986).

A charging instrument alleging driving while intoxicated must allege which of the two
definitions of intoxication the State will rely on at trial, in addition to the type of intoxicant the
defendant is alleged to have used. That is, the State must indicate whether it intends to prove
intoxication through evidence of loss of faculties, evidence of the defendant’s alcohol
concentration, or both methods. The State may specifically allege, in the conjunctive or
disjunctive, either or both of the definitions. The purpose of this rule is to put the defendant on
clear notice of what the State will attempt to prove at trial. State v. Carter, 810 S.W.2d 197,
199-200 (Crim. App. 1991).

If both methods of proving intoxication are alleged in the information and the jury is
charged disjunctively, a general verdict is proper and will support a conviction under either
theory that is supported by the evidence. Sims v. State, 735 S.W.2d 913, 915 (Tex. App.--Dallas
1987, pet. ref.).

Driving a Motor Vehicle

A motor vehicle is a device in, on, or by which a person or property is or may be


transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.
Penal Code §49.01(3).

Under this definition, an information charging a defendant with driving an automobile


will support a conviction even though the evidence shows that the vehicle was actually a
motorcycle. Small v. State, 631 S.W.2d 201, 201 (Tex. App.--Corpus Christi 1982, no pet.).

The word “operate” contemplates the doing of something or the making of some effort by
the driver. Reddie v. State, 736 S.W.2d 923, 926 (Tex. App.--San Antonio 1987, pet. ref.). For
example, the phrase “driving and operating a motor vehicle” has been held to include steering a
motor vehicle without the engine running while being pushed by another motor vehicle.
Chamberlain v. State, 163 Crim. R. 529, 294 S.W.2d 719, 720 (1956). Nevertheless, the
definition of “operating” given in Reddie was not followed in another case, in which the court

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found sufficient evidence of operation when the intoxicated defendant was found asleep in a

stopped vehicle that had the engine idling and the transmission in neutral. Barton v. State, 882
S.W.2d 456, 459 (Tex. App.--Dallas 1994, -- --).

Before the current Penal Code was enacted, the offense of driving while intoxicated was
also committed by the owner of an automobile who, while a passenger, permitted another person
to drive the automobile when the owner knew that the person driving was intoxicated. The
vehicle owner was held to be criminally responsible just as if he or she were the driver of the
vehicle, provided that the necessary elements existed to make the owner of the vehicle a principal
in the offense. Joiner v. State, 161 Crim. R. 526, 279 S.W.2d 333, 334 (1955).

It is open to question whether the same result would be reached under more recent Penal
Code provisions defining parties and establishing criminal liability for the conduct of another.
Penal Code §§7.01, 7.02.

Chemical Tests

Requirements for Admissibility

Chapter 724 of the Transportation Code sets forth the requirements for administering
chemical tests to determine the intoxication of the accused. Transportation Code, §724.001 et
seq.; see Langford v. State, 532 S.W.2d 91, 93-95 (Crim. App. 1976).

If the results of a chemical test are erroneously admitted into evidence, a conviction for
driving while intoxicated may nonetheless be affirmed if there is sufficient independent evidence
to support the conviction. In the court’s opinion in Rangel v. State, 502 S.W.2d 152, 153-154
(Crim. App. 1973), an officer’s testimony regarding the defendant’s behavior was sufficient
independent evidence to support determination that the defendant was intoxicated.

In a trial for any criminal action or proceeding arising out of an offense involving the
operation of a motor vehicle or watercraft under Chapter 49 of the Penal Code, (such as driving
while intoxicated), the parties are entitled to introduce evidence concerning the defendant’s
alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other
substance as shown by an analysis of a specimen of the defendant’s blood, breath, urine, or any
other bodily substance, taken at the request or order of a peace officer. When a person has been
given a chemical test at the request of a peace officer, the person is entitled to a full report of the
results of the test on request.

The type of specimen to be submitted is solely within the discretion of the arresting
officer. White v. State, 711 S.W.2d 106, 108 (Tex. App.--Houston [14th Dist.] 1986, no pet.). In
fact, there is no due process requirement that a person be afforded the opportunity to take a

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chemical test, such as a blood test, [Graham v. State, 665 S.W.2d 832, 833-834 (Tex.
App.--Dallas 1984), aff' d in part, rev'
d in part on other grounds, 710 S.W.2d 588, 593-594
(Crim. App. 1986)], nor does the implied consent law create a mandatory duty to administer a
test or a specific test. Growe v. State, 675 S.W.2d 564, 567 (Tex. App.--Houston [14th Dist.]
1984, no pet.).

A breath specimen taken at the request or order of a peace officer must be taken and
analyzed under the rules of the Department of Public Safety by an individual possessing a
certificate issued by the department, certifying that the individual is qualified to perform the
analysis. Transportation Code, §724.016; May v. State, 784 S.W.2d 494, 496-98
(Tex.App.--Dallas 1990, pet. ref.). Breath test results may be excluded at trial when the DPS
rules are not followed. Boss v. State, 778 S.W.2d 594, 595 (Tex.App.--Austin 1989). In order to
admit the results of an intoxilyzer test into evidence, the State is required to show: (1) that the
machine functioned properly on the day of the test as evidenced by the running of a reference
sample (which is supposed to be done automatically when the test is administered); (2) the
existence of periodic supervision over the machine and operation by one who is qualified; and (3)
proof of the results of the test by a witness qualified to translate and interpret such results.
Harrell v. State, 725 S.W.2d 208, 209 (Crim.App. 1986). The issue of compliance with the DPS
rules only arises when the State introduces evidence of the actual results of the breath test.
Kercho v. State, 948 S.W.2d 34, 38 (Tex.App.--Houston [14th Dist.] 1997, pet. filed). While
there is statutory language indicating that DPS rules must be followed when the test is
administered in order to admit the results of a breath test at trial, the statute does not mandate that
the State must affirmatively introduce testimony as to compliance with each of the DPS rules as a
predicate to admissibility unless a fact issue concerning a particular rule has been raised.

A blood specimen taken at the request of a peace officer must be withdrawn by a


physician, qualified technician, chemist, registered professional nurse, or licensed vocational
nurse. For purposes of this statute, the term qualified technician does not include emergency
medical services personnel. Transportation Code, §724.017. It must be established as a
predicate for admission that the blood sample tested was the same specimen actually taken from
the defendant. The statute also requires that the blood sample be taken in a sanitary place.

When a person gives a specimen for a test, the person may, on request and within a
reasonable time not to exceed two hours after the arrest, have a physician, qualified technician,
chemist, or registered nurse of his or her own choosing draw a specimen and have an analysis
made of his or her blood, in addition to any specimen taken and analyzed at the direction of the
peace officer. The person must be allowed a reasonable opportunity to contact somebody to
draw blood, but the officers are not required to transport the person to that individual for testing.
Moreover, the failure or inability to obtain this additional specimen or analysis does not preclude
the admission of evidence relating to the analysis of the specimen taken at the direction of the
peace officer. Transportation Code §724.019. In addition, there is no right to a later blood test
when the person has refused to provide the original sample requested by an officer. In such
cases, the officer has no obligation to inform the person of any right to have a subsequent sample

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drawn. Finley v. State, 809 S.W.2d 909, 913 (Tex. App.--Houston [14th Dist.] 1991, pet. ref.).

Nevertheless, the defendant may introduce at trial the fact that a request to take an
additional test was refused. Transportation Code §724.062. When the defendant does have a test
taken after arrest, the defendant should be prepared to show chain of custody at trial to establish
admissibility.

Consent to Take Tests

Any person who operates a motor vehicle in a public place, or a watercraft, in Texas is
deemed to have given consent to submit to the taking of a specimen of his or her breath or blood
for the purpose of determining the alcohol concentration, or the presence of a controlled
substance, drug, dangerous drug, or other substance, when the person is arrested for any offense
arising out of acts alleged to have been committed while the person was operating a motor
vehicle while intoxicated. Transportation Code §724.011(a); State v. Williams, 814 S.W.2d 256,
259 (Tex. App.--Austin 1991), aff' d, 832 S.W.2d 52 (Crim. App. 1992). That’s normally
referred to as the “implied consent” law.

However, it should be noted that consent is not implied unless the officer had reasonable
grounds to believe person was driving while intoxicated when the officer stops the accused and
requests the test. The implied consent law applies only to breath or blood tests, although the
person may voluntarily consent to the administration of any other tests. Transportation Code
§724.011(b). The peace officer has the right to designate the type of specimen to be taken.
Transportation Code §724.012(c); White v. State, 711 S.W.2d 106, 108 (Tex. App.--Houston
[14th Dist.] 1986, no pet.).

Although a person gives implied consent to take these tests, the person also retains an
absolute right to refuse a test under the terms of the statute. Transportation Code §724.013.
Thus, actual consent is still a requirement under the statute. The person’s consent must be
voluntary, and must not be the result of physical or psychological pressures brought to bear by
law enforcement officials. Erdman v. State, 861 S.W.2d 890, 893 (Crim. App. 1993).

The State must prove that actual consent was positive and unequivocal, and that the
officer involved did not use duress or coercion, actual or implied, in obtaining consent. State v.
Williams, 814 S.W.2d 256, 260 (Tex. App.--Austin 1991), aff' d, 832 S.W.2d 52 (Crim. App.
1992). There may also be an issue of voluntariness if the police use deceit to obtain a sample.
McKenna v. State, 671 S.W.2d 138, 139 (Tex. App.--Houston [1st Dist.] 1984, pet. ref.).
Similarly, consent is not voluntary if it is induced by the officer’s misstatement of the
consequences of refusal. State v. Sells, 798 S.W.2d 865, 867 (Tex. App.--Austin 1990, no pet.).

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Since the taking of a chemical test is not a testimonial communication, there need not be
any Miranda warnings prior to its administration. Rodriguez v. State, 631 S.W.2d 515, 517
(Crim. App. 1982). There is also no federal or state constitutional right to counsel before making

the decision of whether to take a chemical test. McCambridge v. State, 778 S.W.2d 70, 72
(Crim. App. 1989).

However, before requesting a person to submit to the taking of a specimen, the officer is
required by statute to inform the person both orally and in writing of the following matters
[Transportation Code §724.015]:

1. If the person refuses to submit to the taking of the specimen, the refusal may be
admissible in a subsequent prosecution.

2. If the person refuses to submit to the taking of the specimen, the person’s license to
operate a motor vehicle will be automatically suspended, whether or not the person is
subsequently prosecuted as a result of the arrest. The suspension is for not less than 90
days if the person is 21 years of age or older, and for one year if the person is younger
than 21 years of age.

3. If the person submits to the taking of a specimen and analysis shows the person had an
alcohol concentration above the statutory limit, the person’s license to operate a motor
vehicle will be automatically suspended for not less than 60 days, whether or not the
person is subsequently prosecuted as a result of the arrest.

4. If the officer determines that the person is a resident without a license to operate a
motor vehicle in Texas, the department will deny the person the issuance of a license,
whether or not the person is subsequently prosecuted as a result of the arrest, if the person
refuses to submit to the taking of a specimen or if the alcohol concentration is above the
statutory limit. If the person refuses to submit to the taking of a specimen, the denial is
for not less than 90 days if the person is 21 years of age or older, and for one year if the
person is younger than 21 years of age. If the alcohol concentration is greater than the
statutory limit, the denial is for not less than 60 days.

5. The person has a right to a hearing on the suspension or denial if, not later than the
15th day after the date on which the person receives the notice of suspension or denial or
on which the person is considered to have received the notice by mail as provided by law,
the department receives, at its headquarters in Austin, a written demand, or a request for
the hearing in another form prescribed by the department, including a request by
facsimile.

These warnings are mandated by the statute. However, any additional warning about the

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effects of refusal, even if accurate, may constitute coercion that would render the suspect’s
consent involuntary. For example, consent was not shown to be voluntary in a case in which the
officer gave additional “warnings” that the suspect would be jailed and charged with driving
while intoxicated if he refused to submit to testing, and there was no evidence showing that the
additional warnings had no bearing on the suspect’s decision to consent. Erdman v. State, 861
S.W.2d 890, 893-894 (Crim. App. 1993). Additionally, consent is not voluntary if it is induced
by the officer’s misstatement of the consequences of refusal. State v. Sells, 798 S.W.2d 865, 867
(Tex. App.--Austin 1990, no pet.).

Refusal to Take Tests

A specimen may generally not be taken from a person who refuses to submit to the
procedure. Transportation Code, §724.013. As an exception to this rule, however, an officer
must require the taking of a specimen of the person’s breath or blood if all of the following
conditions are true [Transportation Code §724.012(b)]:

1. The officer arrests the person for an intoxication or alcohol offense involving the
operation of a motor vehicle or a watercraft.

2. The person was the operator of a motor vehicle or a watercraft involved in an accident
that the officer reasonably believes occurred as a result of the intoxication or alcohol
offense.

3. At the time of the arrest the officer reasonably believes that a person has died or will
die as a direct result of the accident.

4. The person refuses the officer’s request to submit to the taking of a specimen
voluntarily.

A person who is dead, unconscious, or otherwise incapable of refusal is considered not to


have withdrawn the implied consent provided by Transportation Code Section 724.011. If the
person is dead, a specimen may be taken by the county medical examiner, or by a licensed
mortician or other authorized person if there is no county medical examiner for the county. If the
person is alive but is incapable of refusal, a specimen may be taken in the ordinary manner.
Transportation Code, §724.014.

Before making the request for a specimen, the officer must inform the person of certain
consequences of refusal to submit as discussed above. If a person refuses the request, the officer
must request the person to sign a statement that (1) the officer requested that the person submit to
the taking of a specimen, (2) the person was informed of the consequences of not submitting to
the taking of a specimen, and (3) the person refused to submit to the taking of a specimen.
Transportation Code, §724.031.

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A person’s refusal of a request by an officer to submit to the taking of a specimen may be
introduced in evidence at the person’s trial, whether the refusal was express or the result of an
intentional failure to give the specimen. Transportation Code §724.062. A defendant’s refusal
to consent to testing is not protected from admission into evidence by the state or federal
constitution or by the Code of Criminal Procedure. McGinty v. State, 723 S.W.2d 719, 721-722
(Crim. App. 1986); Thomas v. State, 723 S.W.2d 662, 666 (Crim App. 1986). However, because
refusal to submit is in the nature of an incriminating act or statement, a defendant’s refusal may
not be admissible in evidence if the statutory warning was not given. Janek v. State, 826 S.W.2d
803, 805 (Tex. App.--Texarkana 1992, no pet.). But see Hogue v. State, 752 S.W.2d 585,
589-590 (Tex. App.--Tyler 1987, pet. ref.) where the court held that the warnings were not
required if the test was taken voluntarily by the defendant. The reason the defendant refused to
take a breath test is not admissible as part of the state’s case. However, it could be relevant and
admissible as part of the defense. Jamail v. State, 787 S.W.2d 380, 383 (Crim. App. 1990). But
see the court’s opinion in Gaddis v. State, 753 S.W.2d 396, 398-400 (Crim. App. 1988) where
the State was permitted to argue that the defendant refused to take breath test for fear of failing
where the defense offered another reason for the failure to take the test.

Suspension or Denial of License

If a person refuses to submit to the taking of a blood or breath specimen, whether


expressly or because of an intentional failure of the person to give the specimen, the peace officer
must serve notice of license suspension or denial of issuance of a license on the person and make
a written report of the refusal on a designated form. This is the “ALR” procedure --
Administrative License Revocation -- administered by the Department of Public Safety (DPS).

If the officer fails to serve notice of suspension or denial of a license, the Department of
Public Safety will mail the notice when it receives the officer’s report. The notice of suspension
or denial of a license must state (1) the reason and statutory grounds for the action; (2) the
effective date of the suspension or denial; (3) the right of the person to a hearing; (4) how to
request a hearing; and (5) the period in which a request for a hearing must be received by the
department. Transportation Code, §724.034. The suspension or denial takes effect on the 40th
day after the date on which the person receives actual or constructive notice.

The period of suspension or in which issuance of a license is denied varies based on the
person’s driving record. The basic period of suspension or denial is 90 days if the person is 21
years of age or older, and one year if the person is younger than 21 years of age. The period of
suspension or denial is180 days if the person’s driving record shows one or more alcohol-related
or drug-related enforcement contacts not involving convictions during the five years preceding
the date of the person' s arrest. In this context, an alcohol-related or drug-related enforcement
contact is a driver’s license suspension, disqualification, or prohibition order under the laws of
Texas or another state after a person arrested for driving while intoxicated either has refused to
submit to a blood or breath test or has submitted to a test revealing an unlawful alcohol
concentration. Transportation Code, §724.035. The period of suspension or denial is one year if

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 9
the person’s driving record for the past five years shows one or more driver’s license suspension,
disqualification, or prohibition orders made under the laws of Texas or another state after the
person was convicted of driving while intoxicated.

The defendant is entitled to a hearing on the suspension or denial if one is properly


requested. If, not later than the 15th day after the date on which the person receives actual or
constructive notice of the suspension or denial, the Department of Public Safety receives at its
headquarters in Austin, in writing, including a facsimile transmission, or by another manner
prescribed by the department, a request that a hearing be held, the State Office of Administrative
Hearings must hold a hearing. The hearing may be held not earlier than the 11th day after the
date the person is notified, unless the parties agree to waive this requirement, and must take place
before the effective date of the notice of suspension or denial. A request for a hearing stays the
suspension or denial until the date of the final decision of the administrative law judge.

The issues at the hearing are whether (1) reasonable suspicion or probable cause existed
to stop or arrest the person; (2) probable cause existed to believe that the person was operating a
motor vehicle in a public place while intoxicated; (3) the person was placed under arrest by the
officer and was requested to submit to the taking of a specimen; and (4) the person refused to
submit to the taking of a specimen on request of the officer. It may also be argued that the
refusal must be knowing and voluntary. See Landin v. Texas Dept. of Public Safety, 475 S.W.2d
594, 596 (Crim. App. 1971).

If the administrative law judge finds in the affirmative on each issue, the suspension
order is sustained or the denial of issuance of a licence continues. Otherwise, the department
must reinstate the person’s license or rescind any order denying the issuance of a license. An
appeal from the judge’s decision may be taken in the manner prescribed for other suspensions. A
person waives the right to a hearing and any appeal if the person fails to properly request a
hearing or fails to appear without good cause. A suspension based on refusal to submit to the
taking of breath or blood specimens may not be probated.

After the suspension or denial period has ended, the person’s license may not be
reinstated or a new license issued until the person pays to the department a fee of $100 in
addition to any other fee required by law. Transportation Code, §724.046(a).

The determination of the department or administrative law judge is a civil matter, is


independent of and is not an estoppel as to any matter in issue in an adjudication of a related
criminal charge, and does not preclude litigation of the same or similar facts in a criminal
prosecution. Conversely, the disposition of a criminal charge does not affect a license
suspension or denial and is not an estoppel as to any matter in issue in a suspension or denial
proceeding. However, if a criminal charge for an intoxication or alcohol offense under the Penal
Code results in an acquittal, a suspension may not be imposed. If a suspension has already been
imposed, the department must rescind the suspension and remove references to the suspension
from the computerized driving record of the individual.

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 10
Please note that periods of suspension are subject to legislative and
administrative change. You should consult the latest regulations and
statutes regarding periods of suspension that may apply to your circumstances.

Other Evidence

Direct evidence other than chemical tests is admissible to show the defendant’s
intoxication. A non-expert witness, such as a police officer or a lay person, may express his or
her opinion as to the defendant’s intoxication based on observation of the defendant’s behavior.
Vestal v. State, 402 S.W.2d 195, 197 (Crim. App. 1966); Nichols v. State, 504 S.W.2d 462,
463-464 (Crim. App. 1974); Lewis v. State, 708 S.W.2d 561, 562 (Tex. App.--Houston [1st
Dist.] 1986, no pet.). In Lewis v. State, the court held that the officer’s testimony of intoxication
was sufficient by itself for conviction despite a “zero” reading on breath test machine. This may
include testimony regarding a horizontal gaze nystagmus test. Howard v. State, 744 S.W.2d 640,
641 (Tex. App.--Houston [14th Dist.] 1987, no pet.). However, although the defendant’s
performance on this test is admissible as evidence of intoxication, the test is not sufficiently
reliable to support specific blood alcohol testimony. Emerson v. State, 880 S.W.2d 759, 768-769
(Crim. App. 1994), cert. denied, -- U.S. --, 115 S. Ct. 323, 130 L. Ed. 2d 284 (1994)]; Moreno v.
State, 944 S.W.2d 685, 694 (Tex. App.--Houston [14th Dist.] 1997, pet. filed).

The defendant’s intoxication may also be shown by circumstantial evidence. Gilder v.


State, 474 S.W.2d 723, 724 (Crim. App. 1972). Evidence such as the discovery of empty or
partially filled liquor bottles found in the vehicle may be admitted as bearing on this issue.
Sifford v. State, 511 S.W.2d 526, 527 (Crim. App. 1974). However, such evidence, alone, may
be held to be insufficient to prove intoxication. Thurman v. State, 167 Crim. R. 21, 317 S.W.2d
737, 738 (1958). Further, although evidence of traffic citations is generally not admissible,
citations may be admissible if the conduct that provided the basis for their issuance shows the
impairment of the defendant’s faculties. Nevarez v. State, 671 S.W.2d 90, 92 (Tex. App.--El
Paso 1984, no pet.). The offense may not be proved solely by use of the defendant’s extrajudicial
confession. Coleman v. State, 704 S.W.2d 511, 512 (Tex. App.--Houston [1st Dist.] 1986, pet.
ref.).

Circumstantial evidence most often becomes a factor when there is an issue about
whether the defendant had been driving the vehicle. If no one actually saw the defendant drive
the vehicle, the surrounding circumstances must be assessed to determine if they exclude every
reasonable hypothesis other than the defendant’s having driven the vehicle. Ford v. State, 571
S.W.2d 924, 926 (Crim. App. 1978). This is of necessity a determination that must be made on a
case-by-case basis. The following are examples of cases in which the circumstances have been
found sufficient to indicate the defendant was driving the vehicle:

Memorandum – Driving While Intoxicated


Charles B. “Brad” Frye Lindeman, Alvarado & Frye 11
1. The defendant was the sole occupant of the car and was found slumped over the
steering wheel after a collision. Thomas v. State, 162 Crim. R. 268, 283 S.W.2d 933,
934 (1955).

2. The defendant was the sole occupant of the car and was found behind the steering
wheel of a car parked partly on the highway with exhaust coming from the tail pipe.
Keenan v. State, 700 S.W.2d 12, 14 (Tex. App.--Amarillo 1985, no pet.).

The following are examples of cases in which the circumstances have been found
insufficient to indicate that the defendant was driving the vehicle:

1. The vehicle was found completely off the road with no indication that it had been on
the road or that the defendant had driven it. Ford v. State, 571 S.W.2d 924, 925-926
(Crim. App. 1978).

2. The defendant was the sole occupant and was found in the front seat after an accident.
Avants v. State, 170 Crim. R. 307, 340 S.W.2d 817, 817 (1960).

3. The defendant was found slumped over the steering wheel of a vehicle idling in the
road with the transmission in park, but there was no evidence as to the length of time the
car had been there or as to the car registration. Reddie v. State, 736 S.W.2d 923, 927
(Tex. App.--San Antonio 1987, pet. ref.).

4. The defendant was found unconscious and intoxicated in the driver’s seat of a car
parked on the shoulder of the road with the engine idling. Ballard v. State, 757 S.W.2d
389, 391 (Tex. App.--Houston [1st Dist.] 1988, pet. ref.).

A defendant’s extra-judicial statement may be used to prove that the defendant was
driving if the statement is corroborated by surrounding circumstances. Even though the state has
established the fact of the defendant’s driving, there must also be evidence to fix the time of the
driving to furnish the jury with an informed basis for determining any relationship between the
defendant’s driving and his or her intoxication. Weaver v. State, 721 S.W.2d 495, 498 (Tex.
App.--Houston [1st Dist.] 1986, pet. ref.).

Videotaping

Each county with a population of 25,000 or more according to the last federal census has
the obligation of purchasing and maintaining electronic devices to visually record a person
arrested for driving while intoxicated when the offense occurred before September 1, 1994.
When an arrest occured in such a county, the failure to record the defendant may be adduced in
evidence at the trial. This is the exclusive remedy for the failure to videotape the defendant; the

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 12
case is not dismissed nor are the charges against you reduced. Dismissal for this failure is not
required even if it is shown that the police wilfully failed to make the recording. Green v. State,
745 S.W.2d 477, 478 (Tex. App.--Corpus Christi 1988, pet. ref.).

Also, a defendant is not entitled to a dismissal if the police, after recording the defendant,
inadvertently destroyed the videotape. Shaw v. State, 728 S.W.2d 889, 893 (Tex. App.--Houston
[1st Dist.] 1987, no pet.). The defendant is not even entitled to a jury instruction on this issue,
since that would be a comment on the weight of the evidence. Franks v. State, 724 S.W.2d 918,
920 (Tex. App.--San Antonio 1987, no pet.).

A defendant has no right to consult with an attorney before performing videotaped


sobriety tests. The video portion of a sobriety test is not testimonial in nature; thus, there is no
Fifth Amendment protection and the videotape may be admitted even though the defendant
requested an attorney. Miffleton v. State, 777 S.W.2d 76, 78-80 (Crim. App. 1989). The audio
portion of the videotape is also admissible unless the police conduct depicted in the videotape
expressly or impliedly calls for a testimonial response from the defendant not ordinarily incident
to
arrest and custody or is conduct the police should know is reasonably likely to elicit such a
response. Jones v. State, 795 S.W.2d 171, 176 (Crim. App. 1990).

If the defendant requests the opportunity to consult with counsel, the audio portion of the
videotape should not be played for the jury in order to prevent the unconstitutional inference that
the defendant is guilty because of the request for counsel. Hardie v. State, 807 S.W.2d 319, 322
(Crim. App. 1991). Merely turning down the volume of the audio portion after the jury has been
allowed to hear the officer giving the defendant warnings on the tape fails to adequately protect
the defendant’s invocation of rights in some circumstances. Dumas v. State, 812 S.W.2d 611,
614 (Tex. App.-- Dallas 1991, pet. ref' d). However, if after the warnings there are sufficient
intervening discussions and activities, the reading of the Miranda warnings by themselves are not
subject to suppression unless the reading, in conjunction with the turning down of the audio,
could lead the jury to the conclusion that the defendant invoked his or her rights. Morris v. State,
897 S.W.2d 528, 532-33 (Tex. App.-- El Paso 1995, no pet.). The video portion of the tape as
well as portions of the audio not involving an invocation of constitutional rights may be
introduced to demonstrate the defendant' s demeanor or quality of voice as evidence of the degree
of the defendant’s intoxication because this evidence is non-testimonial in nature. Jones v. State,
795 S.W.2d 171, 175 (Crim. App. (1990).

Whether the verbal responses of a DWI suspect that show mental confusion are
testimonial in nature and, thus, inadmissible if not preceded by Miranda warnings, has been the
subject of interesting debate. For example, in Pennsylvania v. Muniz, 496 U.S. 582, 611, 110 S.
Ct. 2638, 110 L. Ed.2d 528 (1990), the accused was asked seven questions regarding his name,
address, weight, eye color, date of birth, and current age following his DWI arrest. The
defendant was then asked the date of his sixth birthday. The Muniz Court held that the first
seven questions were “for record-keeping purposes only and therefore fall outside the protections

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 13
of Miranda thereby not warranting the imposition of the Fifth Amendment.” Thus, any slurring
of speech and other evidence of a lack of muscular coordination revealed by the answers to the
officer’s direct questions constituted nontestimonial responses for purposes of the Fifth
Amendment protection against self-incrimination. However, the response to the sixth birthday
question was testimonial in nature, and not properly admitted in the absence of Miranda
warnings. Prior to Muniz, the Court of Criminal Appeals held that reciting the alphabet and
counting were not testimonial because these communications were physical evidence of the
functioning of a defendant’s mental and physical faculties. Jones v. State, 795 S.W.2d 171, 175
(Crim.App. 1990, reh’g denied).

While the decision in Muniz cast doubt on the continuing validity of this holding, the
Court of Criminal Appeals has reaffirmed this conclusion in a decision issued after Muniz.
Gassaway v. State, 957 S.W.2d 48, 50 (Crim. App. 1997).

Defenses

It is no defense to a charge of driving while intoxicated that the defendant had a


legitimate or necessary purpose for driving while intoxicated. For example, it has been held that
a defendant did not have a defense when he drove while intoxicated to seek medical treatment for
a serious head injury that he had sustained. Butterfield v. State, 167 Crim. R. 64, 317 S.W.2d
943 (1958). Similarly, an intoxicated passenger is not justified in taking the wheel when the
driver is also intoxicated solely for the purpose of stopping the car in obedience to a police
officer’s signal to stop. Sansom v. State, 390 S.W.2d 279, 279-280 (Crim. App. 1965).

Other factors or conditions held not to be a defense to driving while intoxicated include a
passive-dependent personality, an addiction to alcohol, susceptibility to illness, loss of sleep, or
being under the influence of aspirin or Anacin. Humphrey v. State, 159 Crim. R. 396, 264
S.W.2d 432, 433 (1953); see also Aliff v. State, 955 S.W.2d 891, 893 (Tex.App.--El Paso, 1997).
Likewise, the defenses of involuntary intoxication and insanity not available in DWI cases. It is
also not a defense that the person was legally entitled to use the alcohol, controlled substance,
drug, dangerous drug, or other substance. Penal Code §49.10.

However, the defendant is entitled to raise and have the jury instructed on an affirmative
defense when the evidence shows that the defendant had not consumed any prohibited substance
prior to the incident in question and that independent facts or conditions accounted for the
defendant’s appearance, manner, and conduct. Loftin v. State, 366 S.W.2d 940, 941-942 (Crim.
App. 1963).

Further Notes on the “Breath Test” and Available Defense Strategies

All breath tests are designed to measure the alcohol content of the air in the subject’s
lungs. The test is based on the principle that the ratio of alcohol present in alveolar air (air found
in the air cells of the lungs) to blood alcohol content is 1:2100. This means there is the same

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 14
amount of alcohol in one milliliter of blood as there is in 2100 milliliters of alveolar air. It
should be noted that this principle has been seriously questioned by some researchers. It has
been posited that this figure is actually an average, and that the blood-breath coefficient actually
varies from 1:1500 to 1:3000. The breath-testing devices most commonly used are the
breathalyzer, intoxilyzer, and gas chromatograph intoximeter.

The device most commonly confronted in intoxication cases is the breathalyzer. There
are three basic steps involved in the breathalyzer procedure:

1. Collecting the breath sample from the subject;


2. Passing the breath sample through the colored solution in the test ampule; and
3. Measuring the color loss of the solution in the test ampule.

The breath sample is collected by having the subject blow into an intake valve directly
connected to the machine, or into a collection unit if the sample is obtained in the field. The first
part of the air expended by the subject is eliminated, so that only alveolar air remains in the
breath sample. The sample is then “bubbled” through an ampule containing a yellow,
alcohol-sensitive solution of sulfuric acid and potassium dichromate. The volume of the solution
must be 3 cc, plus 0.10 cc or minus 0.00 cc. A false high reading may result if the ampule
contains too little solution. The machine also contains a control ampule of the same solution
which is not mixed with the breath sample. Both ampules must contain solution from the same
lot or batch for the test to be accurate.

The reaction of alcohol in the breath sample with the solution contained in the test
ampule causes the solution to change color from yellow to green. This color change causes a
change in the intensity of the light transmitted through the glass ampule. This change is
measured by a photocell and recorded on a galvanometer (null meter) attached to the photocell.
Change is indicated when the needle of the galvanometer is in an unbalanced, or “off center,”
position. The needle is then returned to a balanced position when the meter is manually adjusted
by the operator of the machine. This adjustment causes a change in the intensity of the light
transmitted by the test ampule, which is then recorded by another photocell. The amount of this
adjustment is measured on a scale calibrated in terms of blood alcohol content. The figure
indicated on the scale is the percentage of alcohol in the subject’s blood.

The intoxilyzer identifies and measures alcohol vapor by subjecting the captured breath
sample to infrared radiation. The alcohol vapor in the breath sample absorbs the radiation in
proportion to its concentration, and this absorption is then measured and expressed as a
percentage of alcohol in the blood. Moseley v. State, 696 S.W.2d 934, 939-940 (Tex.
App.--Dallas 1985, pet. ref.).

The gas chromatograph functions by measuring the amount of electricity produced by the
alcohol molecules present in the subject’s breath sample. This is accomplished by injecting the
sample into the machine in a gaseous state. The various molecules present in the sample are then

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 15
separated and carried through a flame ionization detector device. This device converts the
molecules into electrically charged ions and a measurement is obtained of the amount of
electrical charge created during the time the alcohol molecules were passing through the flame.

Sources of Error in Breath Tests

The state generally offers two witnesses to support the admission of the results of a breath
test. They are the machine operator who actually conducted the test and the chemist who
analyzed the test results. Counsel should be prepared to cross-examine both witnesses regarding
possible sources of error in administering the test and interpreting the results. The amendment of
the law to now define a blood alcohol reading of 0.08 or more as intoxication may have obviated
the necessity of presenting two separate witnesses.

A breath test must not be given too soon after the alcohol was consumed or a false high
reading will result, since there will be alcohol in the breath sample but not throughout the
subject’s blood stream. The Texas Department of Public Safety recommends that there be a
15-minute waiting period between the arrest and obtaining the breath sample. Similarly, since a
breath test machine operates on the principle of measuring alveolar air, a failure to obtain a deep
breath sample will produce a distorted reading. Thus, a sample obtained from a subject who is
capable of producing only shallow breaths is not acceptable for testing. Shallow breathing may
be due to hyperventilation from nervousness or excitement, or due to a chronic health problem
such as bronchitis or emphysema.

Breathalyzer or intoxilyzer tests may also result in false high readings if there is foreign
matter in the subject's mouth at the time the sample is collected. This is because neither test is
specific solely to ethyl alcohol; the chemicals in the test ampules will react to other hydrocarbons
as well. Thus, if the subject has consumed any food or liquid, or has smoked or vomited, within
15 to 20 minutes before the test is administered, the result may be inaccurate.

Formerly, the regulations required that the person to whom the test is to be administered
be observed continuously during the 15-minute waiting period. State v. Melendes, 877 S.W.2d
502, 503-504 (Tex. App.--San Antonio 1994, pet. ref.). However, the regulations now require
only that the operator remain in the presence of the subject during the 15-minute period and
exercise reasonable care that the subject does not place items in his or her mouth. Continuous,
direct observation is no longer required by the regulations. Instead, the regulations now provide
that two breath samples be taken two minutes apart to ensure the accuracy of the test. If there is a
difference of alcohol concentration between the samples of anything greater than 0.020, the test
is invalidated. One court has noted that this procedure obviates the necessity for continuous
observation, since an event during the 15-minute period that would cause an inaccuracy in the
test would invalidate the test by causing a discrepancy between the two samples of greater than
0.020. State v. Reed, 888 S.W.2d 117, 122-123 (Tex. App.--San Antonio 1994, -- --).

There are several possible sources of error that may arise in the operation of the machine

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 16
itself. All machines must be regularly serviced and checked periodically for accuracy. The
failure to perform such periodic maintenance casts doubt on the accuracy of the test results.
Counsel should include in the pretrial discovery motion a request for the maintenance records of
the machine used to test the defendant so that they can be inspected prior to trial for use during
cross-examination. Another source for cross-examination questions in this regard is the
instruction manual for the particular machine used in the test. The operator of each type of
machine must also follow a specific procedure before administering the test in order to insure the
accuracy of the test results. This includes properly warming up the machine and insuring that the
portion of the machine where the sample is to be analyzed has achieved the proper temperature.

The breathalyzer presents certain sources of error that should be considered for possible
exploration on cross-examination. The solution used in the test ampules must be properly
compounded or a false high reading may result. While it is the state’s burden to show this as a
predicate to the admissibility of the test results, the mere fact that the state has met the burden of
admissibility does not mean that successful impeachment may not affect the weight the jury
accords the test. Another potential source of error is the possibility that it contained less liquid
than required to provide an accurate reading. If the ampule is shaken before its neck is broken
for insertion of the bubbler, some of the liquid may remain in the neck. Since the amount of
breath being tested is so small, any reduction in the amount of liquid is significant. Also, if the
clamp that holds the tube running from the sample chamber to the test ampule is loose, a larger
amount of air than the recommended sample amount will be permitted to reach the ampule and
the resultant reading will be inaccurate.

Certain circumstances that may exist before the start of a breathalyzer test can affect the
results. For example, if the operator has not purged the machine of traces of alcohol from a prior
test immediately before beginning the instant test, the results of the instant test will be inaccurate.
One commentator has also suggested that performing the test in a small, unventilated room where
other tests have been given may mean that impure air has been flushed through the machine and
this may contribute to a false reading. The test results will also be inaccurate if the subject
should happen to blow into the mouthpiece while the control knob is off, since this would send
air directly to the test ampule. The failure to rebalance the machine if this occurs destroys the
validity of the test results. Additionally, if the machine is bumped or moved after it is balanced,
the position of the bubbler, ampule, or blood alcohol indicator may be moved, and thus
contribute to an inaccurate reading.

Finally, there are several points that can always be brought out on cross-examination that
may not technically be considered impeachment, but are admissions that may be used to the
defendant’s advantage. The sample that is measured by any breath testing device is extremely
small, and the amount of alcohol vapor in that sample is even smaller. When the minuscule size
of the sample is established, it may be easier to convince the jury of the likelihood of
contamination or error. Most experts will also concede the variable nature of the 1:2100
blood-alcohol ratio, and that it is not possible to say specifically that the ratio applies to the
defendant. This may be a significant point in a case in which the result was close to the 0.08

Memorandum – Driving While Intoxicated


Charles B. “Brad” Frye Lindeman, Alvarado & Frye 17
level. Finally, it takes the body from 30 minutes to two hours to fully absorb alcohol into the
bloodstream and central nervous system. Thus, in a DWI case, it may be possible for a subject to
register a reading over the legal limit at the time of testing, yet legitimately assert that at the time
of operating the motor vehicle he or she would not have registered such a reading. Weaver v.
State, 721 S.W.2d 495, 499 (Tex. App.--Houston [1st Dist.] 1986, pet. ref.).

It is reversible error to disallow testimony by a defense expert about matters such as


partition ratio and the possibility of radio frequency interference, which go to show the
unreliability of the machine used to test the defendant. Fultz v. State, 770 S.W.2d 595, 597-598
(Tex. App.--Houston [14th Dist.] 1989, pet. ref.).

Punishment

Please note that the range of punishment may change by legislation and
the information in this memorandum may not be up to date. Further,
specific factors in your case, including prior convictions, may
make a difference as to the range of punishment – especially the
minimum and maximum punishments – that may apply to your circumstances.

Offense Committed on or After September 1, 1994

The offense of driving while intoxicated is punished as a Class B misdemeanor, with a


minimum term of confinement of 72 hours. Penal Code §49.04(b). The minimum term of
confinement is raised to six days if it is shown at trial that at the time of the offense the person
driving or operating the motor vehicle had an open container of alcohol in his or her immediate
possession. Penal Code §49.04(c).

Enhanced penalties apply to this offense if a person has suffered a prior conviction for
driving, boating, or flying while intoxicated. If a person has one prior conviction for such an
offense, the punishment is raised to a Class A misdemeanor, with a minimum term of
confinement of 30 days. Penal Code §49.09(a). The offense becomes a third-degree felony if the
person has two prior convictions. Penal Code §49.09(b). For purposes of applying these
enhanced penalties, convictions under prior versions of statutes prohibiting these offenses in
Texas may be used, as may convictions under statutes from other states that prohibit the same
acts. Convictions for intoxication assault and intoxication manslaughter may also be used. Penal
Code §49.09(c).

Further, a conviction for driving, flying, or boating while intoxicated, or for intoxication
manslaughter or intoxication assault, that occurs on or after September 1, 1994, is a final
conviction for these purposes whether the sentence for the conviction is imposed or probated.
Penal Code §49.09(d). However, a conviction may not be used for enhancement if the
conviction was for an offense committed more than 10 years before the offense for which the
person is being tried was committed and the person has not been convicted of driving, flying, or

Memorandum – Driving While Intoxicated


Charles B. “Brad” Frye Lindeman, Alvarado & Frye 18
boating while intoxicated, intoxication manslaughter or assault, or any offense related to driving
or operating a motor vehicle while intoxicated, committed within 10 years before the date on
which the offense for which the person is being tried was committed. Penal Code §49.09(e). A
conviction may be used for purposes of enhancement under this statute or enhancement under
Subchapter D of Chapter 12 of the Penal Code, but not under both this statute and Subchapter D.
Penal Code §49.09(f).

Penal Code §49.09(f) provides that “[a] conviction may be used for purposes of
enhancement under this section or enhancement under subchapter D, chapter 12 (Texas Penal
Code, section 12.41 et seq.), but not under both this section and subchapter D.” Even since the
statute was modified, however, prior DWI convictions have been used for enhancement under
both statutory enhancement provisions so long as the prior offenses were not repeated. Thus, two
prior DWI convictions could be used to elevate the present offense to a felony under the DWI
provisions while another prior DWI was used to raise the potential penalty under the general
enhancement statute. Maibauer v. State, 968 S.W.2d 502, 505 (Tex. App.--Waco 1998, pet. ref.).
This reading of the statute finds further support in the fact that the legislature significantly altered
the felony DWI statute when it enacted the new Penal Code §49.09. Under the former statute,
6701l-1(e) RCS, a person could be convicted of felony DWI if he had “previously been convicted
two or more times of [DWI].” The Court of Criminal Appeals has construed identical language
in the felony theft statute to mean “a defendant’s prior theft convictions, regardless of their
number or degree, cannot serve to enhance the punishment for a subsequent theft of less than
[$1,500] beyond that of a [state jail] felony.” In the felony theft statute, the prior theft
convictions operated as a special enhancement provision that controlled over the general
enhancement statutes.

Texas Penal Code section 49.09(b) now provides that a person can be convicted of felony
DWI if he “has previously been convicted two times of [DWI].” Because the legislature
eliminated the “two or more” previous convictions language, the felony DWI statute is no longer
the special enhancement statute it previously was, and, when read together with Penal Code
§49.09(f), it does not control over the general enhancement provisions of Penal Code §12.42.
Maibauer v. State, 968 S.W.2d 502, 505 (Tex. App.--Waco 1998, pet. ref).

The statutory provision allowing prior DWI convictions to be used for enhancement
under the DWI section of the code or enhancement under the general enhancement provisions but
not under both became effective on September 1, 1995, and was intended to apply only to
offenses that occurred on or after the effective date. Any offenses occurring before that date are
to be adjudicated under the law governing at that time. Rivera v. State, 957 S.W.2d 636, 639
(Tex.App.--Corpus Christi 1997, pet. filed). Relevant law prior to the date of Penal Code
49.09(f) went into effect precluded the use of prior DWI convictions for enhancement under a
general enhancement statute, because of the enhancement provisions unique to the DWI offense.
Phifer v. State, 787 S.W.2d 395, 396 (Crim.App. 1990).

License Suspension

Memorandum – Driving While Intoxicated


Charles B. “Brad” Frye Lindeman, Alvarado & Frye 19
Administrative Suspension – Not Part of the “Punishment” for DWI, but an “Effect” of Offense

As briefly noted and discussed above regarding the ALR procedure administered by the
DPS, a person’s driver’s license will be suspended after the person is arrested for driving while
intoxicated, or for intoxication assault or intoxication manslaughter involving the operation of a
motor vehicle, if the person submits to the taking of a specimen of breath or blood and an
analysis shows the person had an alcohol concentration of 0.08 or more. Transportation Code
§§524.011, 524.012; see Penal Code §49.01 -- alcohol concentration defined; Penal Code §49.04
-- driving while intoxicated; Penal Code §49.07 -- intoxication assault; Penal Code §49.08 --
intoxication manslaughter. This suspension may not be probated. Transportation Code
§524.021(b).

This suspension takes effect on the 40th day after the date the person receives actual or
presumed notice of the suspension. Transportation Code §542.021. The arresting officer will
serve the notice personally at the time of arrest or, if the results of the test are not immediately
available, will attempt personal service later. If the officer does not personally serve the notice,
the Department of Public Safety will determine whether to suspend the person’s license based on
the officer’s report and if the department determines that the person had an unlawful alcohol
concentration while operating a motor vehicle in a public place, the department will send the
person notice of suspension by certified mail. (Most of the time, the “notice of suspension” is
delivered to the defendant at the time of the breath test, assuming the breath test showed a blood
alcohol level in excess of .08.) If sent by mail, the notice is considered received on the fifth day
after mailing. The notice must state (1) the reason and statutory grounds for the suspension; (2)
the effective date of the suspension; (3) the right of the person to a hearing; (4) how to request a
hearing; and (5) the period in which the person must request a hearing.

If the department determines not to suspend the person' s driver’s license, the department
must notify the person of that determination and rescind any notice of driver’s license suspension
served on the person.

The period of suspension is 60, 120, or 180 days, depending on the person’s driving
record during the five years immediately preceding the arrest. The suspension is 60 days if there
are no recorded alcohol-related or drug-related enforcement contacts during that period and the
suspension is 120 days if the driving record reveals one or more alcohol-related or drug-related
enforcement contacts not involving convictions. In this context, an alcohol-related or
drug-related enforcement contact is a driver’s license suspension, disqualification, or prohibition
order under the laws of Texas or another state after a person arrested for driving while
intoxicated either has refused to submit to a blood or breath test or has submitted to a blood or
breath test revealing an unlawful alcohol concentration. Transportation Code, §524.022(2).

The suspension lasts 180 days if the record shows one or more driver’s license
suspension, disqualification, or prohibition orders made under the laws of Texas or another state
after the person was convicted of driving while intoxicated under the influence of alcohol or a

Memorandum – Driving While Intoxicated


Charles B. “Brad” Frye Lindeman, Alvarado & Frye 20
controlled substance. Transportation Code §524.022(3); §524.001(2)(A).

The person is entitled to an administrative hearing if the person requests one and the
request, in writing, including a facsimile transmission, is received by the Department of Public
Safety at its Austin headquarters no later than the 15th day after actual or presumed receipt of
notice.

The person’s license may not be suspended under this statute if the person is acquitted of
a criminal charge arising from the occurrence that was the basis for the suspension. If a
suspension was imposed before the acquittal, the department must rescind the suspension and
remove any reference to the suspension from the person’s computerized driving record. On the
other hand, if a person is convicted of driving while intoxicated, intoxication assault, or
intoxication manslaughter, and the same conduct is a ground for suspension under this statute
and under Transportation Code Chapter 521, Subchapter O, or Chapter 522, Subchapter H, each
of the suspensions may be imposed. Nevertheless, unless the person has a prior conviction of
one of these offenses, the court must credit the administrative suspension against the suspension
imposed on conviction of the offense. Transportation Code §524.023; § 521.341 et seq.

A driver’s license suspended under this statute may not be reinstated and no new driver’s
license may be issued to the person until the person pays the Department of Public Safety a fee of
$100 in addition to any other fee required by law. The payment of a reinstatement fee is not
required if a suspension is rescinded by the department or not sustained by an administrative law
judge or a court.

An optional suspension of up to one year may be imposed on a person under 21 years of


age who is arrested or taken into custody for driving while intoxicated, intoxication assault, or
intoxication manslaughter and submits to a breath or blood test that shows an alcohol
concentration of 0.07 or more but less than 0.10.

License Suspension on Conviction

In addition to the penalties otherwise imposed on conviction for driving while


intoxicated, and in addition to the ALR procedure, the defendant’s driver’s license is
automatically suspended on final conviction of the offense when it is committed as a result of
introduction of alcohol into the body. This suspension also applies on final conviction of
intoxication assault committed as a result of the introduction of alcohol into the body,
intoxication manslaughter, an offense punishable as a felony under Texas motor vehicle laws,
failure to stop and render aid, and certain other offenses. Transportation Code §521.341; Texas
Dept. of Public Safety v. Tull, 657 S.W.2d 508, 508 (Civ. App.--Corpus Christi 1983, no writ).
When the conviction is for driving while intoxicated, intoxication assault, or intoxication
manslaughter, the suspension begins on a date set by the court that is not earlier than the date of
the conviction or later than the 30th day after the date of the conviction. Transportation Code
§521.344(a)(1). Otherwise, the period of suspension automatically begins when the conviction

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 21
becomes final, which is normally on the 30th day after the date of conviction (or plea of guilty).

The suspension period for driving while intoxicated and intoxication assault depends on
the prior record of the defendant. The license of a person convicted of driving while intoxicated
or intoxication assault must be suspended for a period determined by the court that is between
90 days and one year if the defendant had no prior DWI convictions. The court must select a
period between 180 days and two years if the defendant had one or more prior DWI convictions.
Transportation Code §521.344(a)(2). If a person is convicted of intoxication manslaughter, the
suspension period may be not less than 180 days or more than two years. Transportation Code
§521.344(b).

For most other offenses under the statute, the defendant’s first suspension is for a period
of one year. If the defendant’s license is subsequently suspended under this statute, the
suspension must generally last 18 months. Transportation Code §521.343. In applying this
provision, whether a suspension is subsequent depends on the date of the offense, rather than the
date of conviction. Thus, even though convictions may be entered on the same day, convictions
for offenses that occurred subsequent in time to the first offense result in subsequent suspensions
that are 18 months in length. In the case decided in Thomas v. State, 705 S.W.2d 347, 348 (Tex.
App.--Dallas 1986, no pet.), when defendant pleaded guilty to three DWIs on the same day, and
all three suspensions were concurrent, but suspensions based on the second and third offenses
were 18 months long, which means that the total suspension was eighteen months (twelve
months for the first one, eighteen months for the second, and eighteen months for the third).

A first offender is entitled to have the time that his or her license was suspended for a
refusal to give a blood or breath specimen credited to any suspension following the conviction
for the same offense.

However, in the event of a “plea bargain” regarding your DWI charge, your license
may not necessarily be suspended when you plead guilty. The automatic suspension is not
imposed when a defendant convicted of DWI for the first time has been placed on probation and
ordered to undergo a rehabilitation program or when a jury has recommended that the license not
be suspended. This suspension is available to a judge, and some judges “automatically” suspend
a defendant’s license and others do not. The issue of this suspension will be addressed at the
time the court enters punishment either after a trial or upon a plea of guilty.

The DPS also may not revoke the driver’s license of a defendant who has been placed on
probation when it has been required as a condition that the defendant not operate a motor vehicle
unless it is equipped with a breath analysis device. In addition, the court may not add a license
suspension as a condition of probation if the defendant has been ordered to undergo a
rehabilitation program. However, failure of the judge to suspend the defendant’s license does not
deprive the Department of Public Safety of the right to move for suspension. Burrows v. Dept.
of Public Safety, 740 S.W.2d 19, 20 (Tex. App.--Dallas 1987, no writ).

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 22
If a defendant ordered to attend a rehabilitation program fails to complete that program
within the allotted time, a suspension must be imposed. The suspension is continued until the
person successfully completes the program. If the department seeks to impose a suspension on
failure of a defendant to complete a rehabilitation program, the defendant has the right to a
hearing on the issues of successful completion and lapse of allotted time. Transportation Code
§521.344(e)-(h).

A suspension may be imposed even if the defendant does not have a valid driver’s
license. Hernandez v. State, 842 S.W.2d 294, 296 (Crim. App. 1992). In such cases, a person
convicted of DWI is prohibited from obtaining a license until the end of the suspension period.
Transportation Code §521.344(e), (f), (g). As a result, a defendant is entitled to ask the jury to
recommend that there be no suspension even if there has been no showing that the defendant has
a valid driver’s license. Hernandez v. State, 842 S.W.2d 294, 296 (Crim. App. 1992).

Vehicle Forfeiture

A motor vehicle is subject to forfeiture if the vehicle is owned and operated at the time of
a driving while intoxicated offense, or an intoxication assault or intoxication manslaughter
offense involving the operation of a motor vehicle, by a person who has previously been finally
convicted three or more times of driving while intoxicated, intoxication assault involving a motor
vehicle, intoxication manslaughter, criminally negligent homicide, former versions of these
offenses, or any combination of these. Vehicle forfeiture is normally NOT an option sought
by the prosecutors in Harris County for DWI defendants, unless there are circumstances in
addition to the “plain vanilla” DWI offense.

The vehicle is also subject to forfeiture if the person was under community supervision
for intoxication manslaughter or the former version of this offense at the time of arrest.
Transportation Code §704.001(a). If the person is convicted at the trial for the offense for which
the person was arrested, the court sentencing the person may forfeit the vehicle on the motion of
the district or county attorney after notice and hearing and on a showing that a court has
determined that the vehicle is subject to forfeiture. Transportation Code §704.003. The
procedures for forfeiture are set out by statute. Transportation Code §704.001 et seq.

Confinement

There are mandatory terms of incarceration that must be imposed as a condition of


community supervision if the defendant has been convicted of an intoxication offense under
Chapter 49 of the Penal Code. The mandatory terms are as follows:

1. Not less than three days of confinement in county jail if the defendant was previously
convicted of driving, flying, or boating while intoxicated.

2. Not less than 10 days of confinement in county jail if the defendant was convicted

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 23
twice previously of driving, flying, or boating while intoxicated. State v. Lucero, 979
S.W.2d 400, 401 (Tex. App.--Amarillo 1998, no writ).

3. Not less than 30 days of confinement in county jail if defendant was convicted of
causing serious bodily injury due to the operation of a motor vehicle, aircraft, or
watercraft in a public place while intoxicated.

4. Not less than 120 days of continuous confinement if the defendant was convicted of
causing the death of another due to being intoxicated while operating a motor vehicle,
aircraft, or watercraft. Code of Criminal Procedure Art. 42.12 § 13(b).

If the court instructs the jury on community supervision in a case involving a death, it
should also instruct them on the mandatory confinement period. Heathington v. State, 705
S.W.2d 326, 329 (Tex. App.--Amarillo 1986, no pet.).

Although the statute only provides for a minimum 120 days confinement, with no
maximum, an order of confinement for any period longer than 120 days must meet a
reasonableness standard. Hypke v. State, 720 S.W.2d 158, 160 (Tex. App.--Houston [14th Dist.]
1986, pet. ref.).

Mandatory Evaluation

If the court grants community supervision to a defendant who has been convicted of (1)
operating a motor vehicle, aircraft, or watercraft while intoxicated, or (2) causing death or serious
bodily injury while operating a motor vehicle, aircraft, or watercraft while intoxicated, and the
defendant has not submitted to a pre-sentence evaluation by a supervision officer to determine
the appropriateness of alcohol or drug rehabilitation, the judge must require the defendant to
submit to this evaluation as a condition of community supervision. If the evaluation indicates that
the defendant is in need of treatment for drug or alcohol dependency, the judge must require the
defendant to submit to that treatment as a condition of community supervision. The treatment
must be in a program or facility approved or licensed by the Texas Commission on Alcohol and
Drug Abuse or in a program or facility that complies with standards established by the
Community Justice Assistance Division of the Texas Department of Criminal Justice, after
consultation by the Division with the Commission. Code of Criminal Procedure Art. 42.12
§13(f).

This requirement of evaluation for drug or alcohol rehabilitation is satisfied if the


defendant is evaluated by a supervision officer or an employee of an approved rehabilitation
facility. The goal of the evaluation is for the facility to prescribe and carry out a course of
treatment that will rehabilitate the defendant from drug or alcohol dependence. Code of Criminal
Procedure Art. 42.12 § 13(a)(2).

Educational Programs

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 24
If the defendant is convicted of operating a motor vehicle, aircraft, or watercraft while
intoxicated or is convicted of causing death or serious bodily injury while operating a motor
vehicle and the defendant is then placed on community supervision, the court must require, as a
condition of community supervision, that the defendant attend and successfully complete an
educational program on alcohol abuse prior to the 181st day after the day community
supervision is granted. The program must be designed to rehabilitate persons who drive while
intoxicated, and it must be jointly approved by the Texas Commission on Alcohol and Drug
Abuse, the Texas Department of Public Safety, the Traffic Safety Section of the Texas
Department of Transportation, and the Community Justice Assistance Division of the Texas
Department of Criminal Justice. Code of Criminal Procedure Art. 42.12 § 13(h).

The court may waive this requirement if the defendant files a sworn, written motion
showing good cause for a waiver. Code of Criminal Procedure Art. 42.12 § 13(h). In
determining good cause, the judge may consider matters such as the following: (1) the
defendant’s school and work schedule; (2) the defendant’s health; (3) the distance that the
defendant must travel to attend an educational program; and (4) the fact that the defendant
resides out of state, has no valid driver’s license, or does not have access to transportation. Code
of Criminal Procedure Art. 42.12 §13(h).

If a defendant is punished as a repeat offender for operating a motor vehicle, aircraft, or


watercraft while intoxicated, a judge must require as a condition of community supervision that
the defendant attend and successfully complete an educational program for repeat offenders
approved by the Texas Commission on Alcohol and Drug Abuse. A judge may waive this
requirement only if the defendant files a written motion showing good cause. In determining
good cause, the judge may consider circumstances including, but not limited to, the following:
(1) the defendant’s school and work schedule; (2) the defendant’s health; (3) the distance that the
defendant must travel to attend an educational program; and (4) the fact that the defendant
resides
out of state, has no valid driver’s license, or does not have access to transportation. Code of
Criminal Procedure Art. 42.12 §13(j).

Additional Discussion of License Suspension

The governing statute is unclear, but apparently a judge must order a DWI defendant’s
driver’s license to be suspended as a condition of community supervision regardless of whether
the defendant is a first-time or a repeat-offender. Code of Criminal Procedure Art. 42.12 §13(k).
This is the source of “confusion” in most courts, and the reason some judges impose a
“mandatory” suspension and some do not. If the defendant is a first-time offender, the
suspension may not be less than 90 days or more than 365 days. Code of Criminal Procedure
Art. 42.12 § 13(k). If the defendant is a repeat offender, the suspension must be for not less than
180 days or more than two years. Code of Criminal Procedure Art. 42.12 §13(k).

In a case involving a repeat-DWI offender, if the court does not order that the defendant’s

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 25
driver’s license be suspended, the Department of Public Safety must suspend the defendant’s
license or issue an order prohibiting the defendant from obtaining a license for 365 days. Code
of Criminal Procedure. Art. 42.12 §13(l).

Payment of Rehabilitation Program Costs

If a judge requires that a defendant participate in a rehabilitation program to help correct


the defendant' s drug or alcohol dependence, the defendant must pay for all or a part of the cost of
the program, depending on the defendant’s ability to do so. Chauncey v. State, 837 S.W.2d 179,
184 (Tex. App.--El Paso 1992), aff' d, 877 S.W.2d 305 (Crim. App. 1994). However, the judge
has the power to credit the cost against the assessed fine. Code of Criminal Procedure Art. 42.12
§13(d).

Failure to Successfully Complete Rehabilitation Program

The director of a rehabilitation program in which a defendant is enrolled has the


obligation to inform the judge if the defendant is not making a good faith effort to participate in
the rehabilitation program. Code of Criminal Procedure Art. 42.12 §13(c).

The failure to successfully complete an education program within the required period
results in the suspension of the person’s driver’s license. However, the requirement that the
defendant’s license be suspended if he or she does not successfully complete an educational
program does not apply if the jury has recommended that the defendant’s driver’s license not be
suspended. Code of Criminal Procedure Art. 42.12 §13(h).

Vehicle Modification

A defendant convicted of an offense under Penal Code Sections 49.04 through 49.08 may
be required as a condition of community supervision to have a device installed on the motor
vehicle owned by the defendant, or on the vehicle most regularly driven by the defendant, that
uses a deep-lung breath analysis mechanism to make impractical the operation of the motor
vehicle if ethyl alcohol is detected in the breath of the operator. It may also be ordered that the
defendant not operate any motor vehicle that is not equipped with that device. If the person is
convicted of an offense under Penal Code Section 49.04, 49.05, or 49.06, and is punished under
Penal Code Section 49.09(a) or (b), or is convicted of a second or subsequent offense under
Penal Code Section 49.07 or 49.08, the court “shall require the defendant to obtain the device at
the defendant’s own cost before the 30th day after the date of conviction unless the court finds
that to do so would not be in the best interests of justice and enters its findings on the record.”
Code of Criminal Procedure Art. 42.12, section 13(i). However, one Court of Appeals has
interpreted this mandatory language to mean that a trial court has discretion whether to impose

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 26
the condition but, if the court requires installation the court has no discretion about the timing of
the required installation or that the defendant sustain the cost. State v. Lucero, 979 S.W.2d 400,
401-402 (Tex. App.--Amarillo 1998, no writ).

Before placing a defendant on community supervision after conviction for an offense


under Penal Code Sections 49.04 through 49.08, the court must determine from criminal history
record information maintained by the Department of Public Safety whether the defendant has one
or more previous convictions under those sections, or has one previous conviction under Penal
Code Sections 49.04 through 49.07, or one previous conviction under Penal Code Section 49.08.
If the court determines the defendant has one or more such previous convictions, the court must
require installation of the device on the motor vehicle owned by the defendant or on the vehicle
most regularly driven by the defendant and that the defendant not operate any motor vehicle
unless the vehicle is equipped with the device. Code of Criminal Procedure Art. 42.12 §13(i).

The defendant must obtain the device at the defendant’s own cost before the 30th day
after the date of conviction, unless the court finds that to do so would not be in the best interest
of justice and enters its findings on the record. The court must require the defendant to provide
evidence to the court within the 30-day period that the device has been installed on the
appropriate vehicle, and the court must order the device to remain installed on that vehicle for a
period not less than 50 percent of the supervision period. If the court determines the offender is
unable to pay for the device, the court may impose a reasonable payment schedule not to exceed
twice the period of the court’s order. Code of Criminal Procedure Art. 42.12 §13(i).

If a defendant is required to operate a motor vehicle in the course and scope of the
defendant' s employment and the vehicle is owned by the employer, the defendant may operate
that vehicle without installation of an approved ignition interlock device if the employer has been
notified of the driving restriction and proof of the notification is with the vehicle. However, if
the business entity that owns the vehicle is owned or controlled by the defendant whose driving
privilege has been restricted, the court may order that the defendant not operate the vehicle
without installation of an approved ignition interlock device. Code of Criminal Procedure Art.
42.12 §13(i).

You should also review the related hand-out describing the DPS “Points System” and
license surcharges instituted under the “Driver Responsibility Program.” A DWI conviction,
even if probated, can and will have serious – and potentially expensive – consequences for your
ability to drive and hold a Texas Driver’s License.

Please give us a call if you have questions about driving while intoxicated. We’d be
happy to help any way we can.

This Memorandum was prepared by Charles B. Frye, Attorney at Law, Lindeman,


Alvarado & Frye, Houston, Texas. It is not billed separately to the client to whom it was

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 27
presented and no charge for time will appear on the client’s statement for legal services.
The Memorandum is intended to assist the client in understanding some basic legal
issues about the question presented and to help the client understand when legal services
may be needed. This Memorandum is not intended as legal advice pertaining to any
specific situation the client may have. Please note the date of the preparation of the
Memorandum and be advised that the law -- both statutes passed by the legislature and
cases decided by appellate courts -- changes from time to time and those changes may
affect the statements contained herein. Each legal problem is unique because of its’ facts
– always seek legal advice from a competent attorney when confronted by a legal
question so that the facts may be appropriately applied to the law. Should you have any
questions or need assistance, please feel free to call Mr. Frye or Mr. Lindeman at (713)
236-8700.

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Charles B. “Brad” Frye Lindeman, Alvarado & Frye 28