Austin DWI Lawyer & Attorney : Jamie Spencer Law Firm : Serving Travis, Williamson and Hays County

From the Joliet Herald News, “SCRAM Bracelet Saves More Than Money”:

David Talarico's business features a high-tech bracelet that has the potential to save tax dollars and -- more importantly -- lives.

The devices, called SCRAM (Secure Continuous Remote Alcohol Monitor), detect alcohol use. The bracelets are worn on the ankle by people who have abused alcohol and are in trouble with the law. Instead of going to jail, offenders wear SCRAM bracelets that monitor their bodies for alcohol 24 hours a day, 7 days a week.

OK. So that’s what the SCRAM bracelet is, and yes, it is being used in Austin as well as Illinois.

For folks released on bond for a DWI 2nd offense or higher that are required by statute to install an Ignition Interlock Device, SCRAM sometimes makes sense. It allows them access to many vehicles, instead of just one, and still fulfills the requirement that ‘some machine is making sure they didn’t consume alcohol’ before starting a car. Some folks can’t be tied down to just one vehicle.

However, it is definitely more not less expensive than an Ignition Interlock. [Posting on a Sunday night; I’ll try to get some exact figures on that soon.]

The article continues:

Though some may think the bracelets are intrusive, Talarico, president of Alcohol Monitors of Illinois Inc., thinks they're the wave of the future.

"People call this 'Big Brother,' but the reality is, these are for the people who need a big brother to help them along," he said. "Clearly if somebody can't stay sober on their own, they'll have to go to jail."

The first paragraph sets up a false dichotomy between something being “intrusive” vs. “being the wave of the future”.

And I just want to be clear on this: Talarico, based on your quote, you are at least admitting that it is Big Brother. Right? It’s just that Big Brother is or can be a good thing – that’s your point.

The article ends with an interesting quote from Talarico. I’m just going to quote it, and not comment. It’s one of those “no comment necessary” situations:

He believes the SCRAM bracelet is an important weapon to fight alcohol abuse.

Being in this business, you see both sides of it," he said. "I see SCRAM almost like the war on terror. You never know what you're preventing, but if you believe in what you're doing you know you're doing good."

OK, I said I wouldn’t comment, but I’ve got an overwhelming urge to repeat that last line:

You never know what you're preventing, but if you believe in what you're doing you know you're doing good.

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Perusing my recent stats, courtesy of Mint, and I see someone has Googled the title of this post.

Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge. 

There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.

And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.

The only difference that counts is that a ‘no contest’ plea can’t be held against you in a civil case arising out of the criminal incident, while a ‘guilty’ plea can. If that’s a big deal to you, maybe it’s worth something. 99% of the time it won’t be.

And as long as I’m being suspicious, who else out there thinks the recent search phrase ‘preparing cops for an ALR hearing’ was done by a prosecutor? Late night search, and all I know is it was from a wireless broadband IP address, so I can’t be sure, but who else would Google such a thing?

What the heck… Never been a prosecutor, but I’m going to hand out some advice in that regard anyway:

Say, “Officer, thanks for showing up. The hearing’s about to start. Have you reviewed the documents? You remember the arrest? OK, great. You’ll get called as a witness in a few minutes.”

Pretty simple stuff. He’ll be sworn in under penalty of perjury. They taught him in the Police Academy to just tell the truth – well, didn’t they?

What other kind of ‘preparing’ could you (not a witness to the events in question) give to an officer anyway?

[OK, OK, I'm being something of a smart-alec.  I know there are prosecutors that read this blog.  Feel free to add comments on how to 'ethically' prepare a witness.  You may do so anonymously, or leave your name.  I'd be happy to hear from you.]

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In response to my post about DWI lawyers and blogs, a commenter who called himself DWI Officer wrote:

Jamie, it is interesting that you wrote, "I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI..." Don't you think the defendant has some control over his/her life, such as making the choice to drive under the influence in the first place? It is no secret that driving under the influence is against the law. 

Just a bit of nitpicking first. Actually the portion of that post about jurors ruining lives was quoted from - and quite noticeably attributed to – Robert Guest, another Texas DWI lawyer, but one who practices in Dallas.

And the point of my post was actually that I felt I had learned something from Guest’s post that I could use in my own practice. (And thus, that lawyer blogs are worth reading.)

But I did quote that portion, so let me address it.

The short answer to the question is “Yes, obviously defendants who choose to drink and drive play a large role in getting themselves convicted”. As Bart Simpson once said about a fiasco he had entirely created “I can’t help but feel partly responsibly”.

But let’s take a look at the last sentence from DWI Officer’s comment:

It is no secret that driving under the influence is against the law. 

Well this is Texas, so let’s substitute ‘driving while impaired’, which is roughly the definition of intoxicated for DWI, for ‘driving under the influence’.

And while it may not be a ‘secret’ that DWI is illegal in Texas, it is a secret what intoxicated means.

First, no one knows when they are at or just above a .08 blood or breath alcohol concentration. Yes, sometimes they are or should be pretty certain that they are substantially over the limit – but no one knows where the line itself is.

Even when a defendant charged with DWI comes in to hire us, and is completely honest and truthful about what they had to drink over what period of time, even then the lawyer doesn’t always know.

So, yes, my DWI clients make decisions that get them arrested; not all of the decisions, but obviously the initial ones. They chose to drink alcohol and drive a vehicle some time later. But that, in and of itself, is not a criminal offense.

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DWI defense lawyers write and talk often about the inherent unfairness in penalizing DWI so harshly, when there is so much uncertainty about whether someone is guilty.

Criminal defense lawyers write and talk about how they answer “that question”…you know the one: How can you defend someone you know is guilty? 

Mark Bennett wrote a while back about jury selection in a DWI case in Houston, and for some reason, the short post has been floating around in the back of my mind. He listed off age, race, gender and occupation of the six folks that ended up on the jury, noting that it was an unusual mix for a Harris County jury.

I think the point of his post was that his client was really going to get a jury of his peers, rather than the usual makeup of a jury, and he ended the post with this line:

If the State can convince these six that my client is guilty of DWI, he might just be.

And finally, it came to me. The reason Mark’s words stuck in my head had nothing really to do with the point he was making. What struck me was this: even Mark didn’t know if his client was guilty or not.

Now, there are several reasons that a criminal defense lawyer might not know that his client was guilty, even when he was; the primary reason is the obvious one… the client doesn’t admit guilt, or doesn’t tell us the whole story.

But DWI clients are very often completely truthful with their lawyers, and yet still the lawyer himself doesn’t know.

As DWI lawyers often say, Driving While Intoxicated is an opinion crime. I think Mark’s (unintentional) point proves that.

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Randy England has an excellent post that illustrates the dangers of applying “worst case scenario” thinking to every situation. But before we get to the article, let me put on my Modest Proposal hat to see whether I can rile you up and get your Tough-On-Crime legislative juices running…

#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.

#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.

I don’t need to tell you that we already have these rules separately, and some of you can guess what will happen when we combine them.

I’ve blogged before about the (il)logical dangers of imprisoning people for life without proving any intent, and we see more and more stories in the news of Texans prosecuted for Felony Murder based on DWI. The state gets there by proving DWI + 2 prior convictions for DWI = felony, and felony + dead body = murder.

Yes, there’s already a more specific statute for Intoxication Manslaughter, whereby a defendant convicted of DWI that causes death can be punished up to 20 years in prison. But that’s not enough for the Life in Prison crowd. So, we came up with the legal fiction of misdemeanor DWI elevated to felony with priors + dead body = murder.

And, because no one has sympathy for defendants convicted of DWI, there is no general outcry about over punishment in these cases. So that leads to murder convictions in DWI cases, without any intent to kill.

But wait, couldn’t the same reasoning be applied to non-DWIs? Let’s get back to Randy’s post “Should driving while license suspended result in a felony-murder charge?”

You may have heard of defendant Kevin Fisher in Kansas City who is charged with felony-murder because he was in an auto accident and his passenger was killed. No Drugs or alcohol were involved. The reason he is charged with murder is that he was driving on a suspended license, normally a misdemeanor–but in his case, a felony because of his prior criminal record…

Apparently in Missouri, DWLS can be elevated to a felony based on a defendant’s prior history. (In Texas, it ‘maxes out’ at a Class A misdemeanor – that is, ‘only’ a 1 year in jail maximum sentence.)

But as Randy points out, the law requires a causal connection between the ‘felony’ (or Driving While License Suspended, in this case) and the death. But the State has been known to stretch that pretty far sometimes:

If I rob a bank with a toy gun and the guard accidently shoots and kills a bystander while trying to stop me, I get charged with felony murder because someone was killed as a result of my felony.

But should the same apply if I try to forge a check at Breaktime and the clerk gets suspicious and calls the manager from the back room. On the way out the manager slips, breaks her neck and dies. All because of my forgery. Am I now to be tried a murderer?

What if they called the police and the officer runs over a baby on the way to investigate?

Worse still, many folks don’t know that their licenses are suspended in the first place. Couldn’t the state then proceed with murder charges, when the underlying misdemeanor itself is very questionable? Randy asks the same thing:

Some may argue that [the defendant] was a bad driver, so that puts him on a par with a drunk driver. But that is not necessarily so. One can be suspended for many reasons which have nothing to do with dangerous driving (e.g. failure to show proof of insurance or getting behind on child support).

Not only that, a person can drive while suspended without actually knowing that he is suspended. It is considered sufficient that you should have known you were suspended. That means [the defendant] can be guilty of murder on a standard of recklessness. Normally, a reckless killing would not be murder, but manslaughter.

I repeat: it is [illogical, unfair, senseless… you pick] to apply “worst case scenario” thinking to all defendants.

Because, when you do, you get a glorified traffic ticket, like DWLS, prosecuted as a Murder. And on its face, that has to be the wrong result.

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Article 17.441 of the Texas Code of Criminal Procedure requires a magistrate to order a defendant being released on DWI 2^nd or Felony DWI bond to install an ignition interlock device on any vehicle he owns or has access to.

What’s an ignition interlock device? From the statute:

…a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator

The condition will be imposed on anyone arrested for DWI with a prior conviction, whether the defendant is released on personal bond, cash or cash deposit bond, surety or bail bond. In Austin, the judge that orders the condition will require a meeting with the County Pretrial Services office within 24 hours of release. The person is then given 30 days to show proof that the interlock has been installed.

Failure to install the device will result in two consequences. First, the bond will be revoked, which will result in a warrant for the person’s arrest. And second, if DPS does not receive proof of compliance, along with another fee, the person’s license will be suspended until such proof is shown.

(Click for contact information about the 3 companies that Austin DWI defendants can use to install an interlock device on their vehicle.)

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David Rauf’s article in today’s Austin American Statesman “Lawmakers seek to curb drunken driving; Opponents worry about racial profiling” highlights 3 pieces of DWI legislation now pending:

#1) DWI Roadblocks/Checkpoints

#2) Ignition Interlock for First Time DWI in Texas, and

#3) Creating a Presumption of Guilt for DWI in Texas

The legislators in Austin are presented with multiple bad ideas on the DWI front – and I’ve had to break them up into 3 separate posts.

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From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:

A third proposal would have simplified the method used for determining a person's blood-alcohol content at the time he or she was driving.

The proposal, House Bill 915, by Rep. Jimmie Don Aycock, R-Killeen, would have specified that if a driver's blood-alcohol content is higher than the legal limit of 0.08 within 90 minutes of being pulled over, the driver would be considered intoxicated.

"Right now, the problem is you have to prove they were intoxicated while driving," Aycock said. [Emphasis Mine]

So it’s a problem that the State has to meet their burden of proving guilt beyond all reasonable doubt? A problem that can be fixed with some legislation?

Fortunately, this bill was voted down by the House Law Enforcement Committee. I’ve written previously about the “Rising BAC defense” that is available to some DWI defendants in Texas. Being over .08 at the time of the breath test does not necessarily mean you were over .08 at the time of driving.

But some lawmakers objected to “forcing” the State to prove their case, so they attempted to create a presumption that any breath test within 90 minutes of driving would automatically do the trick.

David Gonzalez, counsel for TCDLA and also a local Austin DWI lawyer hit the nail on the head when he…

…said the bill would create a presumption of guilt.

"What that really means is, we need to make it easy for convictions, and when science and other things get in the way, let's disregard them," Gonzalez said.

Politicians can’t change the science of breath or blood alcohol testing…and Texans should continue to object to illogical manipulations of DWI statutes.

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From today’s Austin American Statesman:

House Bill 934 by Rep. Linda Harper-Brown, R-Irving, would require first-time offenders in driving while intoxicated cases to use an ignition interlock device in their vehicles. The driver must blow into the device to have his or her blood alcohol content measured. The car will not start if the driver is legally intoxicated.

Under current Texas law, judges are allowed to use discretion in requiring ignition interlock for first-time offenders.

Opponents of the measure say the bill will strip judges of their discretion.

Fellow Austin DWI Attorney Ken Gibson recently commented on this idea on KXAN’s coverage of this bill:

Gibson said it's the repeat offenders who need ignition interlocks, and requiring them for first-time offenders is a result of aggressive lobbying by the manufacturers.

"Ignition interlock is a multi, multi-million dollar business, and to require everybody to have them in their cars is going to increase their business by a thousand times," Gibson said.

Ken’s right, of course, that the folks that make money installing Ignition Interlocks lobby hard for these types of measures.

And I can add this: most of the people that come to my office after an Austin DWI arrest aren’t alcoholics. Putting aside for now those that aren’t guilty of DWI to start off with, many are primarily my clients for making a one time bad judgment.

And don’t forget that the costs and penalties involved for first time DWI convictions in Texas are already punitive. This pending legislation is a classic example of politicians pandering to knee-jerk reactions, rather than real problems.

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Texas Penal Code § 49.04 DWI carries a special penalty provision, which on its face seems to carry a higher penalty than normal for a Class B Misdemeanor:

…an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours…

Indeed, “regular” Class B misdemeanors have a punishment range of 0 to 180 days, not 72 hours to 180 days. And I often get asked by potential clients, who have done some DWI research online before coming to see me, doesn’t this mean there’s at least some mandatory jail time for a first offense DWI in Texas, even if the defendant is granted probation?

But the answer is still no. The quickest explanation here is that the statute is referring to the minimum amount of time that can be probated by a judge; but as we will see, that is virtually meaningless.

When someone is convicted of any offense in Texas, and then placed on probation, they have a jail sentence “hanging over their head” as a possible penalty in case they violate their probation. (Think of it as the carrot and the stick.)

And in a DWI probation situation, it’s true that the statute requires the judge to sentence the defendant to 72 hours, or 3 days, as a minimum term of the probated sentence.

Now, in theory, a judge could sentence someone to 2 days in jail, but suspend the sentence, and not require it to be served unless the defendant violated the terms and conditions of their probation, for a regular non-DWI Class B offense. But no sane judge would ever do that. Why?

Well, we’re back to the carrot and the stick. If a defendant were sentenced to 2 days in jail probated for any length of time, they would actually have an incentive to violate their probation. Their “penalty” for violating would entail being taken off probation, and sentenced to a maximum of 2 days.

But they would, by statute, be credited with at least one day for the night they were arrested. And, at least in Austin, they would be given 2 for 1 towards their sentence (the Travis County Jail, like most county jails in Texas, gives 2 days credit for every day actually served). In other words, they would be off probation, and given back time for the time they had already served. That’s not exactly a punishment for violating their probation.

The practical truth is this: whether it’s a shoplifting, possession of marijuana, DWI, or any other Class B misdemeanor, a judge is likely to “sentence” the defendant to something on the higher range of the punishment ladder (like 120 to 180 days) when probating a sentence. This is to ensure that the judge actually has a stick, when they grant that carrot of probation.

(One final quick lawyer caveat as I re-read my entry before posting: I am not saying that probation is mandatory in the first place. Simply that folks shouldn’t read the statute to mean that they are definitely going back to jail, if they end up convicted for DWI.)

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Grits for Breakfast comments on a new bill recently filed in the Texas Legislature that would increase the punishment for Intoxication Manslaughter from a second degree felony to a first degree felony, if the victim was an on duty police officer or firefighter.

In layperson terms, that means the maximum punishment would increase from 20 years in prison, to 99 years or life, again, if the victim was a police officer or firefighter.

The punishment for Intoxication Assault would increase from a third degree felony (max 10 years) to a second degree felony (20 years). Intoxication Assault means committing a DWI and causing serious bodily injury, but not death. Again, the increased penalty is for police and firefighters. From Grits’ piece:

If you think a police officer's life is more important than every other citizen and want to exact maximum vengeance, which is all this bill accomplishes, fine ... say so.

But to claim boosting sentences in these rare cases will reduce drunk driving is a politically motivated lie, plain and simple. It will do no such thing.

Some of the proof is in the bill itself. Why is it limited to on-duty police officers and firefighters? Is their life “worth less” when they take off the uniform?

One of the aggravating factors that can increase murder to a capital offense is the victim being an on duty fireman or police officer, but even that requires an element of intent. From Section 19.03 of the Texas Penal Code:

the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;

So “plain” murder becomes capital murder, when it is shown that the Defendant knew the victim was a police officer or fireman.

And that illustrates exactly what is wrong with this new piece of legislation. The Texas DWI statutes in Chapter 49 of the Penal Code specifically do away with the typical requirement in criminal cases that there be any intent. Section 49.11(a):

§ 49.11. Proof of Mental State Unnecessary.

(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

So we explicitly acknowledge that DWI and related offenses are crimes without intent...so what is the increased penalty for? The random chance that the victim is an on-duty police officer or fireman.

And how can it logically be argued that increasing the penalty for some categories of victims will reduce the rate of DWI, when there is no underlying intent to commit the crime in the first place?

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Chapter 724 of the Texas Transportation Code is entitled “Implied Consent” and this law covers the rules regarding driver’s license suspension hearings for Texas DWI breath test refusal cases.

The basic legal premise justifying a DL suspension in refusal cases is that every person that has a Texas driver’s license already agreed to submit to a breath (or blood) test by virtue of applying for the license itself.

724.011 “Consent to Taking of a Specimen” reads in part:

If a person is arrested for …[DWI]… the person is deemed to have consented… to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.

Since, therefore, you already agreed to take a breath test if you were arrested for DWI, the law says that if you refuse, they can suspend your driver’s license. For 180 days.

It’s one of those things that sounds good, but let’s examine it further.

Google defines “logical fallacy” as: “a misconception resulting from incorrect reasoning”, and that sounds good to me. Why then do I call the concept known as “implied consent” a logical fallacy?

“…the person is deemed to have consented…” [emphasis added]

If a person actually, intentionally and knowingly consents to submitting a breath or blood specimen on demand at the time of applying for a Texas driver’s license, then it would logically follow that they have forfeited their 24/7 driving privileges if they subsequently refuse to follow through on that promise.

But that’s not what happens. No one knows that this law exists. Nor is anyone told this when they apply for a license. In fact, most Texans know that it is not a crime to refuse to take a breath test (as it is in some states).

The law merely states that everybody is “deemed” to have consented…which is just legal mumbo jumbo for saying “we presume you have consented, even though you didn’t know you did…”

It might make sense to suspend a privilege such as the right to drive, if a person refused to live up to their end of their bargain; that is, what they knowingly agreed to do when they asked for the license. 

But pretending that everyone knowingly agreed to give a sample of breath, and punishing them for breaking a promise they didn't know they made...well, that's why it's called "Implied" not "Actual Consent".

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There are 4 basic types of felony DWI in the Texas Penal Code.

The most common of these is probably DWI third, that is, a new DWI charge with two prior convictions. It used to be the law in Texas that if ten years passed from the date of the last DWI conviction, that the new charge was “only” a Class B Misdemeanor, and treated like a DWI first. Then the legislature made it 10 years from the date the person was released from confinement, or probation or parole. More recently, the ten year requirement was abolished, and any prior DWIs are usable for enhancement. This includes out of state DWIs.

The newest type of felony DWI charge is listed in the DWI Chapter of the Penal Code at Section 49.045, DWI with Child Passenger. This statute elevates even a first DWI charge to the level of State Jail Felony, if there is a child under 15 years old in the car. Very often, the State has the same problems proving intoxication that they would in a “regular” DWI charge. However, there are rarely substantive issues regarding the age of the passenger. No prior convictions are required for this to be indicted as a felony.

A third type of Felony DWI in Texas is Intoxication Assault. Section 49.07 is essentially a DWI, with the additional element that the defendant “by accident or mistake…and by reason of …intoxication causes serious bodily injury to another”. There are three basic defenses here: (1) the Defendant was not intoxicated, (2) the injury does not fall into the legal category of “serious bodily injury”, and (3) the intoxication did not cause the injury or accident. No prior convictions are required.

The fourth and final type of Felony DWI is Intoxication Manslaughter. Section 49.08 covers DWI is similar to 49.07, except that the intoxication causes death instead of serious bodily injury. Fortunately, this is the probably the least common type of DWI charge. Both Intoxication Assault and Manslaughter cases usually involve forced blood draws, and are therefore more difficult to defend than other cases. (Blood tests over .08, while not unassailable, are more reliable than breath tests from the intoxilyzer, at least in my opinion.)

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Chapter 49 of the Texas Penal Code, known mostly for the Texas DWI statutes, includes the Texas “Open Container” law. When most folks talk about the Open Container law, they are referring to whether or not it is legal to have an open alcoholic beverage (beer, wine, or liquor) in the passenger area of a car.

I usually see two areas of confusion regarding the public’s awareness of this particular charge. These are covered in Section 49.031, Possession of Alcoholic Beverage in Motor Vehicle.

Many people seem to believe that there is a front seat/back seat distinction, but there’s not. Also, drivers and passengers are included. With few exceptions, it’s not legal to have an open container of beer or other alcohol in your car in Texas.

The exceptions? (1) passengers in taxis, buses, limos and (2) motor homes and RVs.

Also, it is legal to keep it in a locked glove compartment or trunk. If the car has no trunk, it may be stored in the area behind the last upright seat.

Assuming that the Open Container violation is the only offense that the officer witnesses, it is one of the few Class C crimes in Texas that the police must issue a citation for, rather than being given the discretion to arrest. (As opposed to seatbelt and most other traffic violations, which are arrestable offenses.)

Finally, this is not to be confused with the DWI with Open Container provision, contained in 49.04, the main Texas DWI statute, which raises the minimum term of confinement for DWI convictions from 72 hours to six days.

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The Texas statute covering deferred adjudication probation allows a defendant to plead no contest (or even guilty) to certain charges and be placed on a type of probation that, if successfully completed, leaves the defendant without a conviction. Most offenses under Texas law can then be sealed, through the fairly new Motion for Non-Disclosure process.

Unfortunately, this type of probation is completely unavailable for DWI in Texas, even a first time DWI, no collision, no injury, “just a misdemeanor”, and yes, even if the accused “never had a speeding ticket before”.

But wait, there’s more. In Texas, you can receive deferred adjudication probation for offenses as serious as murder – but not first offense Class B misdemeanor DWI. “For murder?”, I hear you ask…

Well, yes, you can. It’s not likely, but I can pose a hypothetical where a person might receive probation for murder…Suppose a 92 year old great grandfather “pulled the plug” so to speak on his 90 year old wife, and all the evidence showed that he did it because he loved her dearly, and couldn’t bear to see her suffer the indignities that old age had heaped upon her.

Now technically, he intentionally took a human life, which is the basic definition of murder, so he could be prosecuted for that. But a felony prosecutor might (I repeat might) consider a plea bargain for deferred probation, figuring that the defendant was not a danger to society, no benefit would come from incarceration, etc. etc.

And while that might be a stretch, my point here is that deferred adjudication probation is available as a potential option in a murder case. But not for plain-jane first offense DWI.

Why is that? Well, the forces behind the ever increasing penalties for “just” a DWI are very powerful, and legislators don’t like to offend certain lobbying groups. There has been no deferred adjudication in Texas for DWI since 1984, and I certainly don’t see things changing on that front any time soon.

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CHAPTER 106. Provisions Relating to Age

Section 106.01.   Definition

Section 106.02.   Purchase of Alcohol by a Minor

Section 106.025. Attempt to Purchase Alcohol by a Minor

Section 106.03.   Sale of Alcohol to a Minor 

Section 106.04.   Consumption of Alcohol by a Minor (MIC)

Section 106.041. Driving Under the Influence of Alcohol by Minor (Texas DUI)

Section 106.05.   Possession of Alcohol by a Minor (MIP)

Section 106.06.   Furnishing Alcohol to a Minor; Purchase of Alcohol for a Minor

Section 106.07.   Misrepresentation of Age by a Minor

Section 106.071. Punishment for Alcohol-Related Offense by a Minor

Section 106.08.   Importation by a Minor

Section 106.09.   Employment of Minors

Section 106.10.   Plea of Guilty by a Minor

Section 106.115. Attendance at Alcohol Awareness Course; License Suspension

Section 106.116. Reports of Court to Commission

Section 106.117. Report of Court to Department of Public Safety

Section 106.12.   Expungement of Conviction of a Minor

Section 106.13.   Sanctions Against Retailer

Section 106.14.   Actions of Employee

Section 106.15.   Prohibited Activities by Persons Younger Than 18

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Section 106.041. Driving Under the Influence of Alcohol by Minor

(a) A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system.

(b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor.

(c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section, the offense is punishable by:

(1) a fine of not less than $500 or more than $2,000;

(2) confinement in jail for a term not to exceed 180 days; or

(3) both the fine and confinement.

(d) In addition to any fine and any order issued under Section 106.115, the court shall order a minor convicted of an offense under this section to perform community service for:

(1) not less than 20 or more than 40 hours, if the minor has not been previously convicted of an offense under this section; or

(2) not less than 40 or more than 60 hours, if the minor has been previously convicted of an offense under this section.

(e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol.

(f) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred disposition or deferred adjudication.

(g) An offense under this section is not a lesser included offense under Section 49.04, Penal Code.

(h) For the purpose of determining whether a minor has been previously convicted of an offense under this section:

(1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction under this section; and

(2) an order of deferred disposition for an offense alleged under this section is considered a conviction of an offense under this section.

(i) A peace officer who is charging a minor with committing an offense under this section is not required to take the minor into custody but may issue a citation to the minor that contains written notice of the time and place the minor must appear before a magistrate, the name and address of the minor charged, and the offense charged.

(j) In this section:

(1) "Child" has the meaning assigned by Section 51.02, Family Code.

(2) "Motor vehicle" has the meaning assigned by Section 32.34(a), Penal Code.

(3) "Public place" has the meaning assigned by Section 1.07, Penal Code.

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§ 49.01.  Definitions.

§ 49.02.  Public Intoxication.

§ 49.031 Possession of Alcoholic Beverage in Motor Vehicle.

§ 49.04.  Driving While Intoxicated.

§ 49.045 Driving While Intoxicated with Child Passenger.

§ 49.05.  Flying While Intoxicated.

§ 49.06.  Boating While Intoxicated.

§ 49.065 Assembling or Operating an Amusement Ride While Intoxicated.

§ 49.07  Intoxication Assault.

§ 49.08.  Intoxication Manslaughter.

§ 49.09.  Enhanced Offenses and Penalties.

§ 49.10.  No Defense.

§ 49.11.  Proof of Mental State Unnecessary.

§ 49.12.  Applicability to Certain Conduct.

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§ 49.01. Definitions. 

In this chapter:

(1) "Alcohol concentration" means the number of grams of alcohol per:

   (A) 210 liters of breath;

   (B) 100 milliliters of blood; or

   (C) 67 milliliters of urine.

(2) "Intoxicated" means:

   (A) not having 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 those substances, or any other substance into the body; or

   (B) having an alcohol concentration of 0.08 or more.

(3) "Motor vehicle" has the meaning assigned by Section 32.34(a).

(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.

(5) "Amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.

(6) "Mobile amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.

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§ 49.02. Public Intoxication.

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.

(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.

(d) An offense under this section is not a lesser included offense under Section 49.04.

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§ 49.031. Possession of Alcoholic Beverage in Motor Vehicle.

(a) In this section:

  (1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

   (2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:

       (A) a glove compartment or similar storage container that is locked;

       (B) the trunk of a vehicle; or

       (C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

  (3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.

(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.

(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:

   (1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or

   (2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.

(d) An offense under this section is a Class C misdemeanor.

(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.

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§ 49.04. Driving While Intoxicated. 

(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

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§ 49.045. Driving While Intoxicated with Child Passenger.

(a) A person commits an offense if:

   (1) the person is intoxicated while operating a motor vehicle in a public place; and

   (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.

(b) An offense under this section is a state jail felony.

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§ 49.05. Flying While Intoxicated.

(a) A person commits an offense if the person is intoxicated while operating an aircraft.

(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

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§ 49.06. Boating While Intoxicated. 

(a) A person commits an offense if the person is intoxicated while operating a watercraft.

(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

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§ 49.065. Assembling or Operating an Amusement Ride While Intoxicated. 

(a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.

(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.

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§ 49.07 Intoxication Assault.

(a) A person commits an offense if the person, by accident or mistake:

   (1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or

   (2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

(c) An offense under this section is a felony of the third degree.

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§ 49.08. Intoxication Manslaughter.

(a) A person commits an offense if the person:

   (1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

   (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

(b) An offense under this section is a felony of the second degree.

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§ 49.09. Enhanced Offenses and Penalties. 

(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.

(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:

(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or

(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.

(c) For the purposes of this section:

(1) "Offense relating to the operating of a motor vehicle while intoxicated" means:

(A) an offense under Section 49.04 or 49.045;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;

(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;

(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;

(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or

(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.

(2) "Offense of operating an aircraft while intoxicated" means:

(A) an offense under Section 49.05;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;

(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;

(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or

(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.

(3) "Offense of operating a watercraft while intoxicated" means:

(A) an offense under Section 49.06;

(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;

(C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;

(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or

(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.

(4) "Offense of operating or assembling an amusement ride while intoxicated" means:

(A) an offense under Section 49.065;

(B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or

(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.

(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.

(e) Repealed by Acts 2005, 79th Leg., ch. 996, Sec. 3.

(f) Repealed by Acts 2005, 79th Leg., ch. 996, Sec. 3.

(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.

(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated 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, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.

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§  49.10. No Defense.

In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.

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§ 49.11. Proof of Mental State Unnecessary.

(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

(b) Subsection (a) does not apply to an offense under Section 49.031.

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§ 49.12. Applicability to Certain Conduct.

Sections 49.07 and 49.08 do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.

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Chapter 524 - Administrative Suspension of Driver’s License for Failure to Pass Test for Intoxication

Subchapter A. GENERAL PROVISIONS

Section 524.001. Definitions

Section 524.002. Rules; Application of Administrative Procedure Act

Subchapter B. SUSPENSION DETERMINATION AND NOTICE

Section 524.011. Officer’s Duties for Driver’s License Suspension

Section 524.012. Department’s Determination for Driver’s License Suspension

Section 524.013. Notice of Department’s Determination

Section 524.014. Notice of Suspension

Section 524.015. Effect of Disposition of Criminal Charge on Driver’s License Suspension

Subchapter C. SUSPENSION PROVISIONS

Section 524.021. Suspension Effective Date

Section 524.022. Period of Suspension

Section 524.023. Application of Suspension under Other Laws

Subchapter D. HEARING AND APPEAL

Section 524.031. Hearing Request

Section 524.032. Hearing Date; Rescheduling

Section 524.033. State Office of Administrative Hearings

Section 524.034. Hearing Location

Section 524.035. Hearing

Section 524.036. Failure to Appear

Section 524.037. Continuance

Section 524.038. Instrument Reliability and Analysis Validity

Section 524.039. Appearance of Technicians at the Hearing

Section 524.040. Notice Requirements

Section 524.041. Appeal from Administrative Hearing

Section 524.042. Stay of Suspension on Appeal

Section 524.043. Review; Additional Evidence

Section 524.044. Transcript of Administrative Hearing

Subchapter E. REINSTATEMENT AND REISSUANCE OF DRIVER'S LICENSE

Section 524.051. Reinstatement and Reissuance

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Section 524.001. Definitions

In this chapter:

(1) "Adult" means an individual 21 years of age or older.

(2) "Alcohol concentration" has the meaning assigned by Section 49.01, Penal Code.

(3) "Alcohol-related or drug-related enforcement contact" means a driver's license suspension, disqualification, or prohibition order under the laws of this state or another state resulting from:

(A) a conviction of an offense prohibiting the operation of a motor vehicle while:

(i) intoxicated;

(ii) under the influence of alcohol; or

(iii) under the influence of a controlled substance;

(B) a refusal to submit to the taking of a breath or blood specimen following an arrest for an offense prohibiting the operation of a motor vehicle while:

(i) intoxicated;

(ii) under the influence of alcohol; or

(iii) under the influence of a controlled substance; or

(C) an analysis of a breath or blood specimen showing an alcohol concentration of a level specified by Section 49.01, Penal Code, following an arrest for an offense prohibiting the operation of a motor vehicle while intoxicated.

(4) "Arrest" includes the taking into custody of a child, as defined by Section 51.02, Family Code.

(5) "Conviction" includes an adjudication under Title 3, Family Code.

(6) "Criminal charge" includes a charge that may result in a proceeding under Title 3, Family Code.

(7) "Criminal prosecution" includes a proceeding under Title 3, Family Code.

(8) "Department" means the Department of Public Safety.

(9) "Director" means the public safety director of the department.

(10) "Driver's license" has the meaning assigned by Section 521.001. The term includes a commercial driver's license or a commercial driver learner's permit issued under Chapter 522.

(11) "Minor" means an individual under 21 years of age.

(12) "Public place" has the meaning assigned by Section 1.07(a), Penal Code.

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Section 524.002. Rules; Application of Administrative Procedure Act

(a