The Prosecutor, September-October 2011, Volume 41, No. 5

Two important changes on intoxication offenses from the legislature

This session certainly had a lot less impact on DWI prosecution than most of the sessions in the last decade, but two significant changes go into effect September 1, 2011, and you need to know about them. While I will address them here, this short article is no substitute for TDCAA’s Legislative Update seminar.

High-BAC aggravated (non-enhanced) DWI
HB 1199 created a new fact-based enhancement for first-time DWI offenses. It requires proof “on the trial of the offense” that the defendant’s blood-alcohol concentration (BAC) was 0.15 or more “at the time of analysis.” If proven, the first-time DWI offense is a Class A misdemeanor instead of a Class B. This allegation must be pled and should be proved at punishment. This “on trial of the offense” language is the same as the §49.04(c) Penal Code enhancement for having an open container.1 Proving the level of BAC at trial will obviously require the same predicate as proving the BAC itself, and it will work with both breath and blood testing.2
    Extrapolation will not be an issue because it is the BAC “at the time the analysis was performed” that must be proven, not the driver’s BAC at the time of operating his vehicle. Unfortunately, defendants who refuse to give a sample—and who are allowed to maintain that choice by officers not seeking a blood search warrant—will avoid this enhanced punishment range, which is yet another great reason to initiate a blood search warrant program in your jurisdiction.
      An updated DWI Investigation and Prosecution book is coming your way this fall that will include new model charging language, but it is pretty easy to simply track the language in the new §49.04(d) of the Penal Code, set out below.
(d) If it is shown on the trial of an offense under this section 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, the offense is a Class A misdemeanor.
    Charging will be a bit more complicated. I recommend submitting the issue as a special issue rather than as an element of the offense, the main reason being that it should be read and charged at punishment. Secondly, submitting the issue as an element would make lesser-included charges a very difficult task. It should parallel an open container finding (this provision was added to the section containing that provision and has identical language).
    When providing the range of punishment in pre-plea admonitions, prosecutors will have to monitor the court closely to make sure the correct range of punishment is given. Now is the time to update any admonition forms your courts use. In plea-bargaining, the enhancement can be waived, required, or otherwise negotiated.
    A DWI with one prior conviction and a BAC over 0.15 will still be just a Class A misdemeanor. In such a case, even making the allegation may overly complicate the situation, and with no residual benefit. Alleging a high BAC in DWI with a Child, Intoxication Manslaughter, Intoxication Assault, or Felony DWI also has no effect on the range of punishment.
    My guess is there are very few prosecutions that really need this “fix.” I doubt many of you were hampered by a limit of 180 days’ incarceration on first-time DWI offenders. Yet any new tool is better than the lack of the same. The one thing I like about the new charge is how good it will look in enhancements of DWI offenders who don’t get the message and have to be prosecuted for repeated violations down the line.

Brand-new DIC-24 with warnings about blood search warrants
SB 1787, spearheaded by the good folks from the Bexar County Criminal District Attorney’s Office, requires that officers give DWI defendants all the facts before they refuse to give breath or blood under the implied consent law. It amends §724.015 of the Transportation Code, which delineates the warnings an officer must give a DWI arrestee when requesting a chemical sample under the implied consent law.
    An officer may request “one or more specimens of the person’s breath or blood.”#3 In perfect cases the officer would obtain a blood sample, then request a breath sample. Further, after a refusal, an officer can seek a search warrant from a qualified magistrate. The Court of Criminal Appeals has repeatedly found that search warrants are permitted4 and reasonable5# in DWI cases. All this new statue does is add warnings to the list used to create the DIC-24 form that sets out those warnings. The new language is as follows:
(3) if the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.
The act went into effect September 1, 2011. Watch for new DIC-24 paperwork and make sure local agencies replace all of those forms on September 1. Don’t let this date go by without getting your house in order. The language needs to be read exactly. The wording “may apply for a warrant” is the proper phraseology. Officers could be argued to negate consent if they tell the defendant they “will get a warrant,” “will draw blood regardless,” or other such improvisations. This wording is important, and like the rest of the DIC-24, should be read verbatim and provided in writing.
    This warning gives an arrestee all of the facts before deciding to consent or refuse to a breath or blood sample, and I hope it increases compliance. It will also be used against the State in cases where the officer won’t or can’t get a warrant—not that this issue has not been routinely raised by the defense before this change. It also makes instituting and increasing blood search warrant programs that much more important. If such a program is not happening in your jurisdiction, you already had a problem. Perhaps some departments will see this statutory change as the writing on the wall and catch up.
    The new DIC-24 is already available on the DWI Resource page at, so check the website. And good luck with these new changes.

1 Open container enhancements are properly read and charged at punishment, yet a defense request to place them at guilt-innocence was found to be harmless. The case might well have been reversed if the enhancing paragraph were read and charged at guilt-innocence over objection. Doneburg v. State, 44 S.W.3d 651 (Tex.App.—Fort Worth 2001, pdr ref’d.).
2 It has been discussed that proving BAC “at the time of testing” in blood-draw cases will make this enhancement impossible because it will be impossible to prove the defendant’s BAC in his body at the time the lab tests the sample. This is a rather overly precise use of the language. I recommend prosecutors simply argue that the first part of testing (and a vital step) is extracting the blood—because the actual testing may take place over several hours or even days in a lab, making this interpretation of the language silly and impractical.
3 Tex. Trans. Code §724.011.
4 Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002).
5 State v. Johnston, 2011 WL 8913234 at *1 (Tex. Crim. App. March 16, 2011).