2016 Family Justice Conference Name of Presentation Impaired - - PowerPoint PPT Presentation

2016 Family Justice Conference Name of Presentation January 25-26 Presenter Hyatt Lost Pines Hotel Title, Court/Organization Impaired Driving Online Summit Judge Laura A. Weiser Judicial 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

• ccupational license to a person if the person

submits proof the person has an ignition interlock device installed on each motor vehicle owned or

• perated by the person.

Transportation Code Section 521.251 (d-1)

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

• perated 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

• peration 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

• peration 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 Interlock P 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

• rder is entered by a court of record

Fr Frequen equently tly Asked ed Ques uestio tions ns

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

• ffense under Sections 49.04-49.08

TPC who is restricted to the operation

• f 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

• peration of a motor vehicle equipped with an

ignition interlock device is entitled to receive an

• ccupational 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

• wned 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

• ne 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???

Fr Frequen equently tly Asked ed Ques uestio tions ns

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 Issues

• Art. 39.14 Code of Criminal Procedure

as 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 officers but not including the work product of counsel for the state in the case and their investigators and their notes or report,

• r any designated books,

accounts, letters, photographs,

• r objects or other tangible things not
• therwise 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

• r 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,

• r 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,

• r 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

• pen 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 Videos

• Art. 2.1396. VIDEO RECORDINGS OF ARRESTS

FOR INTOXICATION OFFENSES. A person stopped

• r 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

• ther 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

• pposing 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

• f 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&Co ntentID=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

• f 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.

Qu Question

• ns

5 minute break

Effective Sentencing in Impaired Driving Cases

Pu Purposes of Sente tencing

• 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……………….. 1439 Percentage of Repeat Offender Drivers involved in fatalities With a BAC of .08-.14………………..12.5 With 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 offenders 64% of first time offenders DO NOT re-offend

The Challenge

Finding those first time offenders who will recidivate Making meaningful changes in repeat

• ffenders’ behavior and thought processes

What Doesn’t Work

• 1. Incarceration

1 in 20 prisoners in Texas are repeat DWI

• ffenders

Research in California, for example, found that persons sentenced to jail for DUI had almost double the 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 Restitution

Used as an alternative to incarceration, community service also appears to have little beneficial effect on repeat DUI

• 4. License Suspensions

A 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

• ffense 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 Traffic

Fine: $3000

• Class A-Fine of $0-$4000 Misc. Traffic

Fine: $4500 or $6500 In addition to the fine prescribed for the specific offense

What Works?

• 1. Validated Risk and Needs Screening and

Assessment

Start Pre-Trial Closely monitor and treat those who score High Risk/High Needs Closely monitor those who score High Risk/Low Needs Don’t make low risk/low needs people worse Re-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 Personality
• 4. Peer Associations
• 5. School/Employment
• 6. Substance Abuse
• 7. Living Situation
• 8. Family/Marital
• 9. BAC Level
• 10. 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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