Sincere thanks to TXDOT - County Prese… · Impaired Driving Online Summit Judge Laura A. Weiser Judicial Resource Liaison. ... Education Program ordered •2ndoffense: 180 days

2016 Family Justice Conference Name of PresentationJanuary 25-26 PresenterHyatt Lost Pines Hotel Title, Court/Organization

Impaired Driving Online SummitJudge Laura A. WeiserJudicial Resource Liaison

Sincere thanks to TXDOT

Occupational Drivers’ Licenses

2 Types:Ignition Interlock Licenses-Restriction Code “N”

Occupational Licenses-Restriction Code “O”

Ignition Interlock Licenses

Eliminates the “hard suspensions”

Texas Transportation Code 521.251(d-1)…Notwithstanding Subsections (b), (c), and (d),[waiting periods] the court may issue an occupational license to a person if the person submits proof the person has an ignition interlock device installed on each motor vehicle owned or operated by the person.

Transportation Code Section 521.251 (d-1)

Petitioner must provide proof of IID installation on each vehicle owned or operated by him

Failure to maintain IIDs on each vehicle can result in revocation of the ODL and reinstatement of the suspension

No time or travel restrictions can be ordered

Transportation Code Section 521.244

(e) A person convicted of an offense under Sections 49.04-49.08, Penal Code, who is restricted to the operation of a motor vehicle equipped with an ignition interlock device is entitled to receive an occupational license without a finding that an essential need exists for that person, provided that the person shows:(1) evidence of financial responsibility under Chapter 601; and(2) proof the person has had an ignition interlock device installed on each motor vehicle owned or operated by the person.

Section 521.248 Order Requirements(d) A person who is restricted to the operation of a motor vehicle equipped with an ignition interlock device may not be subject to any time of travel, reason for travel, or location of travel restrictions described by Subsection (a)(1), (2), or (3) or (b).

Restrictions

P Penal Code Conviction 49.04-49.08

I Ignition InterlockP Proof of Financial Responsibility

(SR 22)

Caveat:

A person granted an ODL under this subsection may not be ordered to submit to the supervision and corrections department under 521.2462 unless the order is entered by a court of record

Frequently Asked Questions

How long does the IID have to remain installed?

See 521.246 (d)“The court shall order the ignition interlock device to remain installed for the duration of the period of suspension

Do you have to determine whether there is an essential need?

521.244(e) “ A person convicted of an offense under Sections 49.04-49.08 TPC who is restricted to the operation of a motor vehicle equipped with an IID is entitled to receive an occupational license without a finding that an essential need exists provided…”

Can I deny a request for an Ignition Interlock License?Transportation Code Section 521.244

(e) A person convicted of an offense under Sections 49.04-49.08, Penal Code, who is restricted to the operation of a motor vehicle equipped with an ignition interlock device is entitled to receive an occupational license without a finding that an essential need exists for that person, provided that the person shows:

(1) evidence of financial responsibility under Chapter 601; and(2) proof the person has had an ignition interlock device installed on each motor vehicle owned or operated by the person.

Occupational Licenses

How Does the Petitioner Get to You?Driver’s License is Suspended:

Your court is in the county where the petitioner resides OR your court is where the conviction originated

When are You Required to Deny the Petition?1. Petitioner has been issued more than

one ODL after a conviction in the last ten years

-521.252(b)(2)

2. Petitioner’s license has been revoked for a medical reason

3. Petitioner’s license has been revoked for failure to pay child support

4. Petitioner is asking for an ODL for a COMMERCIAL driver’s license

What Proof Should be Presented?

• Notice• Jurisdiction• Basis of Suspension• Residence of Petitioner• Court where conviction occurred• SR 22

• In determining essential need under TTC 521.244:• You must consider the Petitioner’s Driving

Record

Term of the ODL

How long is the suspension and when did/does it begin?

ALR Suspensions

• Refusal: 180 days• Failure: 90 days

DWI Conviction

• 1st offense: 90 days to 1 year unless sentence is probated and DWI Education Program ordered• 2nd offense: 180 days to 2 years• 2nd offense within 5 years: 1-2 years

Under 21 YOA

• 1 year unless probated sentence then 90 days• IID required

BAC greater than .15

• IID required

Geographical Areas

• County/City• Specified routes• Contiguous counties• State of Texas • Your jurisdiction ends at the state line!

Times

• Order should specify days of the week and times• Restricted to driving 4 hours/day unless

waived then 12 hours in any 24 hour period• Driving Log???

Frequently Asked Questions

1. If I don’t order an IID when one is required, will DPS add that to my order?

NO. DPS does not ever initiate interlock requirements or interlock orders to add to a driver license. DPS only enters or removes interlock restrictions received from the court.

2. Can I revoke an ODL?

• Yes• See Sec. 521.252 (a)• At any time• For good cause

Pre-Trial Issues in Impaired Driving Cases

Bond Conditions

Art. 17.40 CCP

A magistrate may impose any reasonable condition of bond related to:• Safety of a victim• Safety of the community

Mandatory Art. 17.441 CCP

Ignition Interlock• Subsequent offense• DWI w/child passenger• Intoxication Assault• Intoxication Manslaughter• May waive in the interest of justice• 30 days max. for installation

Verification and Monitoring

• Art. 17.441(d)• Designate an agency to verify installation and monitor

compliance• $10 fee

Other Conditions

• Art.17.43 Home Curfew and Electronic Monitoring• 17.44 Drug Testing-for controlled

substances

Discovery IssuesArt. 39.14 Code of Criminal Procedureas soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of:any offense reports,

any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officersbut not including the work product of counsel

for the state in the case and their investigators and their notes or report,

or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

Defendant’s Access to Discovery

• Art. 39.14(f) provides the attorney may allow the defendant to view redacted copies of the police reports, but MAY NOT allow the defendant to have a copy

• You do not have discretion to release the defendant’s attorney from this restriction. Powell v. Hocker, 516 S.W.3d 488, (Tex.Crim.App. 4/5/17)

Unrepresented Defendants

(d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not required to allow electronic duplication as described by Subsection (a).

Brady

h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

Continuing Duty to disclose

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

Waivers

(n) This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.

Acknowledgement

(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.

Penalties for Non-Compliance

• None listed in CCP 39.14• Issue on Appeal• Exclusion of Evidence• Contempt

In Car or Body Camera VideosArt. 2.1396. VIDEO RECORDINGS OF ARRESTS FOR INTOXICATION OFFENSES. A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1) the stop;(2) the arrest;(3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or(4) a procedure in which a specimen of the person's breath or blood is taken.

Expert Witnesses

(b) On a party's request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence

This Photo by Unknown Author is licensed under CC BY-SA

Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.

Other Non-Evidentiary Pre-Trial Motions• Notice by the State• Enhancements• Intent to use extraneous conduct

• Election to go to the jury for punishment• Application for Probation•Motions in Limine•Motion to Quash the information/indictment

Motions to Suppress CCP Art. 28.01(6)

Suppression issues:• Stop• Arrest• Search• Statements by the Defendant• Evidence Seized

Burden of Proof

With a warrant: Burden is on the movant

Without a warrant: Once warrantless arrest is established, burden is on the State

Art. 28.01 CCP

(6) Motions to suppress evidence--When a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court

Findings of Fact and Conclusions of Law

State v. Cullen 6/28/06 Effective from the date of this opinion, the requirement is:  upon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings. By “essential findings,” we mean that the trial court must make findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court's application of the law to the facts.

Need Help with Findings and Conclusions?https://www.texasbar.com/AM/Template.cfm?Section=Past_Issues&Template=/CM/ContentDisplay.cfm&ContentID=27591

Art. 28.01 CCP Pre-Trial Hearing

• All motions to be filed and heard pre-trial•Mark and exchange exhibits• Do you have a deadline for accepting a plea offer?

Yes

No

Sec. 2. When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits.

Questions

5 minute break

Effective Sentencing in Impaired Driving Cases

Purposes of Sentencing

• Incapacitation•Deterrence •Retribution•Rehabilitation

Safety of the Community

• Significant decline in fatalities and injuries• Attributed to:• Improved vehicle design• Better roads and highways• Changes in driver attitudes and

behavior• Seat belt usage• Attitudes about drinking and driving

The Problem:Alcohol impaired fatalities in Texas in 2018……………….. 1439Percentage of Repeat Offender Drivers involved in fatalities

With a BAC of .08-.14………………..12.5With a BAC of .15 or greater………87.5

Every 20 minutes someone in Texas is hurt or killed in a crash involving alcohol

36% of DWI Convictions are for repeat offenders64% of first time offenders DO NOT re-offend

The Challenge

Finding those first time offenders who will recidivateMaking meaningful changes in repeat offenders’ behavior and thought processes

What Doesn’t Work1. Incarceration

1 in 20 prisoners in Texas are repeat DWI offenders

Research in California, for example, found that persons sentenced to jail for DUI had almost doublethe number of subsequent DUIs as offenders assigned to treatment with license restrictions.2. Fines

Research also shows no correlation between fines and reduced recidivism or traffic fatalities

3. Community Service RestitutionUsed as an alternative to incarceration,

community service also appears to have little beneficial effect on repeat DUI

4. License SuspensionsA study of 46 states found that post-

conviction license suspension had no discernible effects on alcohol-related fatal crashes.

Chapter 709. Miscellaneous Traffic Fines Sec. 709.001. Traffic Fine for Conviction of Certain Intoxicated Driver Offenses. (b) Except as provided by Subsection (c), in addition to the fine prescribed for the specific offense, a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated shall pay a fine of: (1) $3,000 for the first conviction within a 36-

month period;(2) (2) $4,500 for a second or subsequent

conviction within a 36-month period; and

(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed. (c) If the court having jurisdiction over an offense that is the basis for a fine imposed under this section makes a finding that the person is indigent, the court shall waive all fines and costs imposed on the person under this section.

Jurisidictional Questions

Range of Punishment for DWI Offense:

• Class B-Fine of $0-$2000 Misc TrafficFine: $3000

• Class A-Fine of $0-$4000 Misc. TrafficFine: $4500 or

$6500

In addition to the fine prescribedfor the specific offense

What Works?1. Validated Risk and Needs Screening and Assessment

Start Pre-TrialClosely monitor and treat those who score High

Risk/High NeedsClosely monitor those who score High Risk/Low

NeedsDon’t make low risk/low needs people worseRe-Assess frequently to determine progress and

catch unmet needs

Screening

• Screens point out possible problems• Screens are usually quick and are only a starting

point• Should be specialized to DWI Offenders• TRAS will score most DWI offenders as low risk• TRAS does have a DWI trailer that is normed to DWI

Offenders• Impaired Driving Assessment by APPA-IDA• DUI Risk and Needs Triage-DUI RANT TM

Assessments• Adult Substance Use and Driving Survey –

Revised ASUDS-R• Research Institute on Addiction Self Inventory -

RIASI• Computerized Assessment and Referral System-

CARS

Use in conjunction with Criminogenic Risk/Needs Assessments

Things to Consider and Screen/Assess For:

• Trauma•Mental Illness/Disorders (see

CARS)• Educational deficits, learning

disorders• Gender specific issues

Risk Factors for DWI Offenders

1. Prior DWI Convictions/Arrests

2. Antisocial Attitudes 3. Antisocial Personality4. Peer Associations

5. School/Employment

6. Substance Abuse 7. Living Situation 8. Family/Marital9. BAC Level10. Traffic Violations

2. Ignition Interlocks

• Instead of license suspensions• IN CONCERT WITH assessment and

treatment

3. Alcohol and Drug Testing

•Must be often and RANDOM• Not just alcohol

• Use technology• IID• SCRAM• In home monitors• Drug Patches

Reports from monitors MUST be reviewed

4. Incentives and Sanctions

•Must be SWIFT!•Must be individualized• Emphasis on incentives 4-1

5. DWI Courts

• Collaborative Approach• Swift and certain incentives and sanctions• Individualized approach• Treatment + Accountability• Appropriate for High Risk/High Needs• Judge is the leader and decision maker

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