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Seal Texas DWI Non Disclosure HB 3016

New Texas Law Makes First-Time DWI Convictions Eligible for Sealing

By | DWI

Expanding Eligibility for Orders of Nondisclosure for First-Time DWI and Other Offenses

Seal Texas DWI Non Disclosure HB 3016Let’s face it, a criminal record is not a good thing when it comes to employment opportunities and other things that require a background search. Even when the criminal offense is non-violent and unintentional, like DWI, it can negatively impact a person’s future. Our Texas lawmakers recognized this stigma and did something about it. This past legislative session (2017), Texas lawmakers from both sides of the aisle proposed legislation to help expand the opportunity to seal criminal convictions with an order of non-disclosure.

What is an Order of Non-Disclosure?

Having your record “sealed” is common verbiage used by laypersons. Under Texas law, this is referred to as non-disclosure. Orders of non-disclosure “seal” a criminal record from the eyes of the general public and allow a person to deny such record in most situations. However, the offense will remain visible to law enforcement, state and federal authorities, and employers in government fields.

Non-Disclosures Prior to House Bill 3016

Before the legislature acted in 2017, the Texas Government Code required a court to issue an order of nondisclosure of criminal records for a person receiving discharge and dismissal of certain nonviolent misdemeanors for which the person was placed on deferred adjudication community supervision (probation). The code also allowed for some “second-chance” considerations under limited circumstances. However, the Texas Government Code did not previously allow for nondisclosure of DWI offenses under any scenario.

What is HB 3016?

Governor Greg Abbott signed HB 3016 on June 15th, 2017. HB 3016 will be effective, retroactively, beginning September 1, 2017. This law amends and expands the Texas Government Code to allow a person convicted of nonviolent misdemeanors, including DWI’s, to petition the court for orders of nondisclosure under certain circumstances and alters some waiting periods.

HB 3016 also allows a person to petition for an order of nondisclosure of criminal history if that person was ineligible to receive an automatic order based solely on a judge’s affirmative finding that issuing such an order was not “in the best interest of justice.” If the offense was a misdemeanor punishable by a fine only an individual may petition for an order of nondisclosure immediately upon the date of completion of their sentence. However, if the misdemeanor was not punishable by fine only, they must wait until the second anniversary of the date of completing the sentence to petition.

See the full text of HB 3016 – Enrolled version.

Orders of Non-Disclosure for DWI Offenses

HB 3016 now allows a person convicted of a first-time Driving While Intoxicated offense with a blood-alcohol concentration (BAC) less than 0.15 to petition for an order of non-disclosure of criminal history related to that offense. However, there are certain criteria that must be met to be eligible to petition for a non-disclosure of a Texas DWI.

A person may petition to have a DWI sealed only if he/she:

  • has never been convicted of or placed on deferred adjudication community supervision (probation) for another offense—this does not include a traffic offense (punishable by fine only);
  • has successfully completed any imposed community supervision and any term of confinement;
  • has paid all fines, costs, and restitution imposed; and
  • the waiting period has elapsed:
    • 2 years if the person successfully completed a period of at least six months of driving restricted to a motor vehicle equipped with an ignition interlock device as a part of the sentence; or
    • 5 years if there was no interlock requirement as part of the sentence.

Additionally, the court will not issue an order of nondisclosure if an attorney representing the state presents evidence sufficient to the court that demonstrates that the underlying offense, for which the order was sought, resulted in a motor vehicle accident involving another person (this includes a passenger of the defendant).

When may you Petition the Court for an Order of Non-Disclosure for a DWI?

The law requires individuals to wait until the second anniversary of the date of completion of their sentence, if the person:

  • complied with all conditions of the sentence for a period not less than six months; and
  • was restricted to operation of a motor vehicle equipped with an interlock device for at least 6 months.

If the court did not impose the above conditions, they are required to wait until the fifth anniversary of the date of completion of their sentence.

NOTE: Having a first-time DWI sealed by an Order of Non-Disclosure will NOT prevent another DWI from being charged as a DWI (Misdemeanor Repetition).

What are the Disqualifying Factors for DWI Sealing?

A person may NOT have their DWI record sealed if:

  • The DWI was a 2nd or 3rd offense;
  • The DWI involved a finding that the Blood-Alcohol Content was greater than 0.15;
  • The DWI involved an accident involving another person;
  • The DWI was within the last 2 years (5 years if there was not interlock requirement)*

*If the waiting period has not expired, but all other conditions are met, the applicant must simply wait until the waiting period is complete.

Which Offenses are Specifically Excluded from Consideration for an Order of Nondisclosure?

Certain misdemeanors are not eligible for consideration for an order of nondisclosure, mostly intoxication related offenses, which include any misdemeanors under the:

  • Alcoholic Beverage Code §106.041 (possession and/or consumption of or selling alcohol to minors); or,
  • Penal Code § 49.04(d) (driving while intoxicated .15 or higher);
  • 49.05 (flying while intoxicated);
  • 49.06 (boating while intoxicated); or,
  • 49.065 (operating an amusement park ride while intoxicated).

Additionally, any conviction under Chapter 71 of the penal code (engaging in organized criminal activity) may not be non-disclosed.

Furthermore, a person will not be granted an order of nondisclosure and is not eligible to petition the court if the person has previously been convicted or placed on deferred adjudication probation for:

  • an offense requiring sex offender registration;
  • murder;
  • capital murder;
  • aggravated kidnapping;
  • trafficking/continuous trafficking of persons;
  • abandoning or endangering a child;
  • violation/repeated violation of certain court orders or conditions of bond in a family violence, sexual assault or abuse, stalking, or trafficking case;
  • stalking; or
  • any other offense involving family violence.

Results of HB 3016 and the New Non-Disclosure Law

HB 3016 makes it easier for persons with certain low-level nonviolent offenses, particularly DWI’s, to obtain employment and become productive members of society. However, subsequent offenders will remain accountable because law enforcement may still use the “sealed” conviction against subsequent offenses and certain entities will still be able to view the offense.

Contact our Criminal Defense Team Today to See if You Qualify to Have Your Record Sealed Under this Law

Contact Barnett Howard & Williams today and let our team help you determine whether you may be eligible for a non-disclosure under this law when it takes effect in September 2017. We are happy to provide a free consultation to walk you through the steps for sealing your record.  Call our attorney today at (817) 993-9249.

Texas Occupational Drivers License Rules

Texas Occupational License Restrictions and Requirements (and why they matter)

By | DWI

What You Can, Should, and Must Do While You are Driving on an Occupational Drivers License in Texas

Texas Occupational Drivers License RulesIf you’ve received an occupational license related to a DWI ALR suspension (blood or breath test refusal or failure) in Texas, the judge who granted you that license likely included several restrictions and requirements you must follow. Those requirements can be found in the order granting your occupational license. You should have that order handy because Texas Transportation Code Section 521.250 requires you to possess a certified copy of the order when you drive. In fact, it’s a criminal offense not to possess a certified copy (we’ll revisit that below.)

Learn About Your Restrictions and Requirements

It all starts with the order that the judge signed. Review it. When reviewing the order granting your occupational license, you will find various restrictions and requirements. Restrictions typically limit your time, location and purpose of travel. In some scenarios, people are restricted to use an occupational license only when driving a vehicle equipped with an ignition interlock device. Other requirements can vary. They often include (but are not limited to) keeping a travel logbook, no traffic citations, no radar devices, etc. Specifically, however, Texas Transportation Code Section 521.245 requires the judge to require the person attend some form of an alcohol dependency program in the order granting occupational license. The order can also require you to submit proof of attendance to the court.

What Happens if Fail to Follow The Occupational Drivers License Restrictions or Requirements?

Texas Transportation code 521.253 says:
(a) A person who holds an occupational license commits an offense if the person:
…..(1) operates a motor vehicle in violation of a restriction imposed on the license; or
…..(2) fails to have in the person’s possession a certified copy of the court order as required under Section 521.250.
(b) An offense under this section is a Class B misdemeanor.
(c) On conviction of an offense under this section, the occupational license and the order granting that license are revoked.

What about not complying with the requirement for attending an alcohol dependency program? Per Texas Transportation Code Section 521.245, judges have the authority to revoke the occupational license and impose an additional 60-120 day suspension. That additional suspension is costly, too. Unlike the original DWI ALR suspension where you could apply for an occupational license, there is no option for another occupational license if you were granted one and failed to comply with this requirement.

Don’t Run Afoul of the Occupational DL Rules or Restrictions

So, the suggested practice here is simple:

  1. Have a certified copy of the order granting your occupational license.
  2. Read it carefully and educate yourself about the restrictions/requirements involved.
  3. Comply with said restrictions/requirements for the duration of your occupational license.

If you have questions about your occupational license, contact your attorney for assistance. If you don’t have an attorney, the attorneys at Barnett, Howard & Williams, PLLC are only a phone call away.

Community Caretaking Function Texas

Community Caretaking Function: Police May Stop without Reasonable Suspicion

By | DWI

Community Caretaking Function TexasIn November of 2015, we wrote about State v. Byram, a DWI case out of Tarrant County. In Byram, the 2nd Court of Appeals held that a “hunched over” passenger in a vehicle was not enough to invoke the police “community caretaking” function to allow the police to initiate a traffic stop without reasonable suspicion of a violation.  The 2nd Court reversed the DWI conviction and remanded the case back to the trial court. The State appealed this decision to the Texas Court of Criminal Appeals, which issued its opinion today.

When May the Police Invoke the “Community Caretaking” Function to Make a Stop or Detention Without Reasonable Suspicion?

Byram v. State (Tex.Crim.App. 2017)

In this case, State argued that the police officer was engaged in his “community caretaking” function when he pulled the driver over. The State contends that this was a proper exercise of police authority and that the primary purpose of the stop need not be to investigate any alleged violation.

Reviewing the facts in the light most favorable to the trial court’s ruling (denying the suppression motion), the CCA agreed with the State and explained its view on the Community Caretaking function:

Local police officers frequently engage in “community caretaking functions,” totally divorced from the detection, investigation, and acquisition of evidence relating to the violation of a criminal statute. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “As part of his duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a reasonable person—given the totality of the circumstances—would believe is in need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999). However, because the reasonableness of a community-caretaking seizure sprouts from its dissociation from the competitive enterprise of ferreting out crime, “a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non–community caretaking purpose.” Corbin v. State, 85 S.W.3d 272, 276-277 (Tex. Crim. App. 2002).

The Court went on to lay out a two-step test for determining whether an officer may properly invoke his community-caretaking function:

  1. whether the officer was primarily motivated by a community-caretaking purpose; and
  2. whether the officer’s belief that the individual needed help was reasonable.”*

*The standard for reasonableness is no different when the officer stops a vehicle to check the welfare of a passenger rather than the driver. Wright, 7 S.W.3d at 151.

In this particular case, the CCA held, “[the officer] saw a woman in a precarious situation, and acted reasonably to help her by first asking whether she was okay, and then conducting a traffic stop when his
question went unheeded. This is the sort of ‘sound, commonsense police work that reason
commends, rather than condemns.'”

Birchfield v. North Dakota Supreme Court Breath Test

Criminal Penalties for Refusing a Breath Test—Are They Coming to Texas?

By | DWI

Can Texas Charge a Person with a Crime for Refusing a Breath or Blood Test During a DWI Stop?

In Texas, when a person refuses to provide a breath or blood specimen when being arrested for alleged drunk driving offense, their driver’s license is typically suspended. But, can a state have a law that additionally makes it a crime to refuse a breath or blood test? In Birchfield v. North Dakota, the United States Supreme Court held that a state can attach a criminal penalty to those that refuse to submit to a warrantless breath test but they cannot for those that refuse to submit to a warrantless blood test.

In a previous blog post we discussed the oral arguments that took place in this case and briefed the three cases facing the court, Birchfield , Bernard and Beylund.  Birchfield had been criminally prosecuted for refusing a warrantless blood draw; Bernard had been criminally prosecuted for refusing a warrantless breath test; and Beylund, while not criminally prosecuted for refusing a test, submitted to a blood test after the officer told him the law required it. Birchfield v. North Dakota 579 U.S. ____ (2016).

U.S. Supreme Court Issues Opinion in Birchfield Upholding Criminal Penalty for Breath Test Refusal (But Not Blood)

SUPREME COURT DECISION – Birchfield v. North Dakota

First, the Court determined whether warrantless breath and blood tests were proper searches incident to arrest for drunk driving. The Court held that since “breath tests are significantly less intrusive than blood tests” and in most cases adequately serve law enforcement interests, the Fourth Amendment permits a warrantless breath test but not blood test as a search incident to arrest for drunk driving.

Next, the Court addressed the argument that when making the decision to drive on a public road, drivers are deemed to have given consent to submit to a blood test. Applying the Fourth Amendment reasonableness standard, the Court held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Birchfield, 579 U.S. ____ (2016).

Finally, the Court applies these legal conclusions to the three cases.  In Birchfield, the Court held that the judgment affirming his conviction must be reversed because the warrantless blood draw was not a justified search incident to arrest and he was thus, threatened with an unlawful search. In Bernard, the Court held that Bernard had no right to refuse the breath test because it was a proper search incident to arrest. In Beylund, the Court vacated the judgment and remanded the case to the state court to reconsider Beylund’s consent given the partial inaccuracy of the officer’s statement that “the law required it.”

In conclusion, the Supreme Court held that States may enact laws that attach criminal penalties to the refusal to submit to a breath test but they may not enact such laws that will apply to refusal to submit a blood test. So what does this mean for Texas? Well, while we do not currently have laws in place that attaches a criminal penalty to refusal of a breathalyzer, the State could enact a law that makes it a crime to refuse to provide a warrantless breath test incident to arrest of drunk driving.

Deportation Crime Enhancement

Enhancement for Crimes Committed Deportation Illegal Reentry into the US

By | Sentencing

Deportation Crime EnhancementWhat happens when someone who illegally enters the country commits a crime? Further, does it matter is that person was previously deported from the United States? Does federal law provide for sentencing enhancements to extend the prison terms for wrongdoers in this position? The answer is yes—and no. Read on to see how the Fifth Circuit Court of Appeals analyzes federal statutes and sentencing guidelines that could support such an enhancement for the defendant, but decides against doing so.

US v. Rodriguez (5th Circuit, 2016)

A 2002 Theft and Deportation Set the Stage

In 2002, Benito Sanchez-Rodriguez, an “undocumented immigrant,” was convicted in Florida for “Dealing in Stolen Property,” a violation of a state law. Pleading guilty at trial, Rodriguez was sentenced to three years’ imprisonment, which was suspended for three years’ probation. Six months later, he was deported to Mexico because he had no legal status to remain in the US. Over a decade later, in 2014, Rodriguez was arrested for DWI in Texas. While under arrest, the federal government charged him will illegal entry into the US. Ultimately, Rodriguez was indicted on one count of illegal reentry into the US, a violation of federal statute 8 U.S.C. § 1326(a) and (b)(1).

Rodriguez Faces Criminal Charges, Again

In August of 2015, Rodriguez plead guilty to the illegal entry indictment and the district court accepted his plea. Before the sentencing phase, a US Probation Officer prepared a “pre-sentence investigation report” (“PSR”), relying upon the United States Sentencing Guidelines (“USSG”). The PSR assigned Rodriguez base offense level of 8, which was raised by 8 additional levels because of the 2002 “Dealing in Stolen Property” conviction (an aggravated felony qualifier), for a total base offense level of 16. U.S.C. § 2LI.2(b)(1)(C). The PSR added that because Rodriguez took responsibility by entering a guilty plea, the total base offense level was reduced by 3, for a final total of 13. The PSR recommended that with a base offense level of 13, Rodriguez should face between 24 to 30 months in federal prison. Rodriguez objected both on the record and in writing, arguing that the 2002 conviction was not an aggravated felony qualifier, however, the district court adopted the PSR’s recommendations. Accordingly, he was sentenced to 27 months’ imprisonment.

Rodriguez Appeals to the Fifth Circuit, Argues Florida Statute Overbroad

Rodriguez now appeals to the Fifth Circuit for relief, arguing, that the 2002 conviction is not an aggravated felony qualifier for sentencing purposes because the Florida law “Dealing in Stolen Property” is overly broad. The Fifth Circuit must determine whether Rodriguez’s prior 2002 conviction qualifies as an “aggravating felony offense” under the USSG, because if so, he faces a longer prison term and could potentially set a precedent for the federal “aggravated felony qualifier” status of this Florida law.

Federal Law: Sentencing Enhancements

A defendant’s base offense level will be increased by 8 levels if the defendant previously was deported, or unlawfully remained in the US after conviction for an aggravated felony, without regard to the date of the conviction for the aggravated felony. U.S.S.G. § 2LI.2(b)(1)(C); U.S.S.G. § 2LI.2 cmt. N.3(A); United States v. McKinney, 520 F.3d 425, 429 (5th Cir. 2008). An aggravated felony is defined as a “theft offense, including receipt of stolen property, or burglary offense, for which the prison term is at least one year.” 8 U.S.C. § 1101(a)(43)(G).

Federal Cases: Determining Aggravated Felony Qualifiers

A “categorical approach” is used to determine whether a prior conviction is an offense under the USSG. Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Rodriguez-Negrete, 772 F.3d 221, 224-25 (5th Cir. 2014). Courts compare the elements of a statute forming the basis of the defendant’s conviction with the elements of the generic crime (the offense as it is commonly understood). United States v. Schofield, 802 F.3d 722, 727-28 (5th Cir. 2015). If the offense of conviction has the same elements as the generic crime, then the prior conviction may serve as the predicate, because anyone convicted under that law is guilty of all of the elements. Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013).

Similarly, a “modified categorical approach” is used by courts to analyze the elements of a divisible statute (a criminal statute that is comprised of several varied offenses). In a two-step “modified categorical approach,” the court first reviews indictments and jury instructions, among other documents, to determine which part of a statute formed the basis of a defendant’s prior conviction. Next, the court compares the elements of the crime of conviction with the element of the general crime.

The Fifth Circuit Weighs In

Here, the Fifth Circuit adopted the modified categorical approach to analyze the case. Here, the “generic crime” is a theft offense—the “Dealing in Stolen Property” conviction from 2002. Because the provision does not clearly define “theft offense,” the Fifth Circuit applied the generic definition of theft, “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership.” United States v. Medina-Torres, 703 F.3d 770, 774 (5th Cir. 2012)(per curiam). Burke v. MuKasey, 509 F.3d 695, 697 (5th Cir. 2007).

The court examined the Florida statute reads, “Traffic means to (a) sell, transfer, distribute, dispense or otherwise dispose of property; (b) to buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of property.” Fla. Stat. § 812.012(8). Next, the Court reviewed Rodriguez’s charging document, which read, “Rodriguez knew or should have known that the property was stolen.” The Court examined Florida case law that showed that Florida applies the statute to conduct outside of the generic definition of theft—which created a problem when applying this conviction to the sentencing enhancement provision as outlined in the PSR. Without the enhancement provision, Rodriguez’s sentence would likely not have been as long with a lower base offense level. Accordingly the Fifth Circuit vacates the 27-month prison term and remands the case for resentencing only.

Exigent Circumstances Warrantless Blood Draw

Understaffing of Police Cannot Create the “Exigency” to Justify a Warrantless Blood Draw

By | DWI

In a Warrantless DWI Blood Draw Case, State Offers “Understaffing of Police” as an Exigent Circumstance.

Exigent Circumstances Warrantless Blood DrawBonsignore v State (2nd Court of Appeals – Fort Worth, 2016)

After traveling eighty miles an hour in a forty miles per hour zone, Jeremy Bonsignore pulled into a Waffle House and started walking toward the restaurant. Unknown to Bonsignore, law enforcement had been following him for several minutes. Once the officer pulled into the parking lot, he activated his lights and began yelling at Bonsignore to stop walking. Bonsignore turned around, stumbled, and lost his balance. The officer noted the presence of a strong odor of alcohol and that Bonsignore’s eyes appeared glassy.

Bonsignore admitted to having a few drinks earlier in the day, which prompted the officer to conduct several field sobriety tests. Bonsignore failed them and then abruptly refused to do anymore tests or provide a breath or blood sample. Bonsignore was placed under arrest at 1:49 am. Dispatch informed the officer that Bonsignore had two prior DWI convictions, which could amount to Bonsignore being a repeat DWI offender, a felony offense. With this information in mind, the officer instructed a second officer to take Bonsignore to the hospital for a mandatory blood draw. The blood draw was conducted at 2:55 am. Bonsignore did not consent to the taking of his blood and the officer did not obtain a warrant.

Warrantless Blood Draw Issue at Trial

Before trial began, Bonsignore filed a motion to suppress the results of the blood draw, arguing that the blood draw was warrantless, and therefore, unconstitutional. The motion was never officially ruled upon, although the court did take the motion under advisement. During trial, when asked why he ordered the blood draw, the officer said that Bonsignore’s “two prior convictions were his only authority for obtaining the blood draw.” The officer did not attempt to obtain a search warrant, and he acknowledged that Bonsignore did not give his consent to a blood draw.

The officer testified that he relied solely on the statute, Texas Transportation Code 724.012, for authority to order the draw against Bonsignore’s will. Pleading guilty to the charges, the trial court issued Bonsignore a two-year sentence. Bonsignore appealed, arguing that his motion to suppress the evidence should have been ruled upon because the blood draw was taken without his consent and without a search warrant, violating the ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State argues that (1) Bonsignore’s blood-alcohol level would dissipate over time, (2) he was a repeat felony offender, and (3) the police department was small and understaffed, and that obtaining a warrant in this case would have been overly-burdensome for the officers that night.

Is “Dissipation” an Exigent Circumstance to Justify a Warrantless Search?

In the wake of the McNeely case, the Second Court of Appeals must determine whether Bonsignore’s blood draw was constitutional, and, whether the State may rely on an exigency “emergency circumstances” argument as an exception to the Fourth Amendment.

Texas Transportation Code

Section 724.012(b)(3)(B) states that blood or breath samples may be required to be taken when the suspect is arrested for DWI and he refuses to give the specimen voluntarily, so long as the suspect has two prior DWI convictions, “although [the code] does not expressly authorize taking the specimen without a warrant.” State v. Swan, 483, S.W.3d 760, 764 (Tex. App.—Fort Worth 2016, no pet.).

However, “the explicit refusal to submit to blood testing overrides the existence of any implied consent and that implied consent that has been withdrawn by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.” State v. Villarreal, 475 S.W.3d 784, 800.

Precedent Case Law: Missouri v. McNeely

“The natural metabolism of alcohol in the bloodstream [does not] present a per se exigent circumstance justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556, 1558.

The Second Court of Appeals Weighs In

The Second Court of Appeals agreed with Bonsignore. “The police may not create their own exigency to make a warrantless arrest or search.” Parker v. State, 206 S.W.3d 593, 598 (Tex. Crim. App. 2006). “Exigent circumstances do not meet Fourth Amendment standards if [law enforcement] deliberately creates the [circumstances].” Id.

Here, the Court held, law enforcement knew that it was not a “No Refusal Weekend” in Texas. Further, the police department knew that it only had three officers on duty the entire night Bonsignore was arrested. In fact, understaffing the department was a typical occurrence. There was nothing out of the norm about the number of officers on duty that night. “Deliberately scheduling an insufficient number of patrol officers on an evening shift does not constitute an exigent circumstance.” State v. McClendon, NO. 02-15-00019-CR, 2016 WL 742018 (Tex. App.—Forth Worth, Feb. 25, 2016, no pet.).

Additionally, the department had a protocol for obtaining warrants, even in the absence of magistrates “on call.” Also, there was no earth-shattering emergency or problem that prevented the officers from making attempts to secure a warrant for Bonsignore’s search. The Court makes a point to highlight the efficiency of fax machines for the purposes of securing warrants, “thanks to the fax machine, [law enforcement] could …request a search warrant” and “thanks again to a fax machine…once [law enforcement] had the search warrant, [they] could fax it directly to a hospital instead of driving [the warrant] there.” The argument that the police department is small was unpersuasive for the Second Court of Appeals. For these reasons, the Second Court of Appeals reversed the trial court’s ruling, and remanded the case to the trial court for a new trial.

Preserve Appeal in DWI Blood Draw Case

Warrantless Blood Draw Case Turns on Defense Failure to Preserve Appellate Issue

By | DWI

Court of Criminal Appeals Considers Whether Defense Failed to Preserve Appeal

Preserve Appeal in DWI Blood Draw Case

Smith v. State (Tex Crim. App. 2016)

Warrantless Blood Draw Provides Evidence of DWI

William Smith was stopped by police for driving without a seatbelt. Immediately, law enforcement suspected Smith of driving under the influence because of the “extremely strong smell of alcohol” coming from Smith. Accordingly, law enforcement administered several field sobriety tests and determined that Smith “exhibited clues of intoxication.” Smith became belligerent after being arrested, and refused a breathalyzer. Law enforcement searched Smith’s car incident to his arrest, finding three open containers that were “cold to the touch.” Dashboard camera footage captured the entire stop.

Law enforcement decided to transport Smith to a local hospital for a blood draw because a quick check of Smith’s ID showed that he had two prior DWI convictions. The blood sample taken at the hospital reflected a blood-alcohol concentration of .21 grams of alcohol per 100 milliliters of blood—well above the legal limit of .08. Smith elected a bench trial.

Defense Counsel Argues that Blood Draw was Unconstitutional, Trial Judge Seems to Agree

At trial, the State called a forensic scientist to testify about Smith’s blood sample. The forensic scientist testified that Smith’s blood alcohol level exceeded the statutory minimum of .08. Shortly thereafter, there was discussion between the judge and counsel about Texas case law in regards to whether the court must have an “order” signed by a judge or magistrate in order for a blood alcohol test to be admitted into evidence. The defense counsel stated, “I would…object…on constitutional grounds [because] there should be a written order [in evidence].” The State replied that law enforcement was “operating under the laws of the State.” The judge seemed to agree with defense counsel, “No…the legislature allows for this…but that doesn’t mean the law is constitutional.” The judge decided to “carry” the constitutional issue so that each side could research and make a formal brief before the court. However, at the end of the trial, Smith was convicted of DWI. The judge stated the “video of [Smith] showed signs of intoxication, but the judge was surprised…that [Smith]…did as well as he did on the [field sobriety tests]” given the .21 blood alcohol concentration. The judge sentenced Smith to twenty-five years imprisonment. There were no further objections on the record made by defense counsel post-judgment.

Appeal Turns on Lawfulness of the Blood Draw

On appeal, the court of appeals reversed Smith’s conviction because the blood sample was obtained without a warrant, violating the Fourth Amendment. State appeals to the Court of Criminal Appeals, arguing that Smith did not preserve error at trial with regard to his Fourth Amendment issue, and as a result of the failure, Smith was precluded from raising a constitutional argument on appeal.

The Issue Before the CCA – Did the Defense Preserve Appeal of the Blood Draw Issue?

The CCA must determine whether defense preserved error so that the fourth amendment search and seizure issue could be raised on appeal. To preserve error, defense counsel must obtain a ruling on the complaint, or object to the trial judge’s refusal to rule.” Tex. R. App. P. 33.1(a)(2) However, “even evidence that is improperly admitted is considered in determining whether the evidence is sufficient to support a conviction.” Soliz v. State, 432 S.W.3d 895, 900 (Tex. Crim. App. 2014).

The CCA Holds that Appellate Issue was NOT Preserved

Here, the CCA determined that the trial judge declined to rule on the Fourth Amendment constitutional issue at the time, but decided to “carry” the issue. Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004). The CCA says that although the trial judge admitted the blood-alcohol test results, he did not rule on Smith’s initial objection, and thus, error was not preserved in this case. “In any event,” says the CCA, “there was…evidence to support [Smith’s] conviction aside from the blood-test results.” “Smith never asked for a ruling on the [constitutional issue], nor did defense counsel object to the trial judge’s failure to rule. In sum, failure to preserve error on a fourth amendment search and seizure argument for warrantless blood draws in DWI cases precludes a defendant from raising the constitutional argument on appeal.

Warrantless Blood Draw DWI CCA

Two New Warrantless Blood Draw Opinions; Two Different Results

By | DWI

CCA Reaches Different Conclusions in Two Separate Warrantless Blood Draw DWI Cases

Warrantless Blood Draw DWI CCAJust when we thought the warrantless blood draw issue was starting to reach firm footing in our appellate case law, the Texas Court of Criminal Appeals (CCA) throws a wrench into it. This week the CCA handed down a confounding set of opinions relating to warrantless blood draws in two separate DWI cases—Weems v. State and Cole v. State. Both cases dealt with drivers who were alleged to be intoxicated, both cases involved serious car accidents, both drivers suffered injuries, and, both cases presented law enforcement with the difficult decision to obtain blood samples without a warrant, as the body’s natural metabolic process threatened to destroy evidence over time that could have been used to charge and to prosecute the suspected intoxicated drivers. Procedurally, both Weems and Cole argue that the Texas Transportation Code § 724.012 is at odds with the Fourth Amendment and McNeely. Let’s take a look at the facts of each case and briefly review Texas law to reveal the reasoning behind the surprising conclusions reached by the CCA.

Weems v. State

A Night of Drinking Leads to a Car Accident

FACTS: Daniel Weems drank heavily at a bar for several hours one summer evening in June of 2011. Weems decided to drive home around 11:00pm, and on the way, his car veered off the road and flipped over, striking a utility pole. A passerby stopped to help, but saw Weems exit the car through his window. When asked if he was alright, Weems stumbled around saying that he was drunk. Noticing the smell of alcohol, the passerby called 911 and watched Weems run from the scene. When the first police officer arrived at midnight, Weems was found hiding under a parked car.

Law enforcement noted his bloodshot eyes, slurred speech, and inability to stand without assistance in the police report. Moments later, a second police officer came to the scene and arrested Weems on suspicion of driving while intoxicated (“DWI”). Law enforcement decided against conducting field sobriety tests because Weems suffered injuries and had “lost the normal use of his mental and physical faculties due to alcohol.” TEX. PENAL CODE § 49.01 (2)(A). Weems, however, refused a breathalyzer and a blood test, even after law enforcement informed him of the potential consequences (suspended license, etc.) for refusal. Emergency responders transported Weems to a nearby hospital because Weems complained of neck and back pain.

Arrest Leads to Warrantless Blood Draw

Weems was seen in the hospital’s trauma unit and the second police officer completed the form, requesting a blood draw, while the first police officer remained on duty, but on standby. Weems blood was taken at 2:30 am, over two hours post-arrest, with a result of .18—well above the .08 legal limit. Relying on the Supreme Court case Missouri v. McNeely, where the highest court held that the body’s natural metabolic processing of alcohol in the bloodstream does not create an exigency (emergency) such that an exception to the Fourth Amendment’s warrant requirement is created, Weems sought to have the results of the blood draw suppressed at trial. The trial court did not grant the suppression and jury found Weems guilty of felony DWI, sentencing him to eighty years’ imprisonment. On appeal, Weems argued that his Fourth Amendment rights were violated. Surprisingly, the Fourth Court of Appeals agreed with Weems, holding that in light of McNeely, Texas’s implied consent and mandatory blood draw schemes do not give way to warrant-requirement exceptions, and, that the record established at Weems’s trial did not support admitting the warrantless blood draw results under an exigency exception. The State appealed to the CCA.

Cole v. State

Fatal Car Crash Leads to Arrest

FACTS: On a December evening in 2011, Steven Cole drove his vehicle 110 miles per hour down a busy street, running a red light, and crashing into a pickup truck. The crash caused a large explosion and fire, killing the driver of the pickup truck instantly. When the first police officer arrived at the scene around 10:30pm, he saw Cole shouting for help because he was trapped in his truck in the fire’s path. Shortly thereafter, several police officers arrived and began putting out the multiple fires to secure the area for pedestrians and motorists.

Law enforcement would later testify that “from a law enforcement and safety perspective, they needed as many officers on the scene as they could possibly get” because the raging fires and continued explosions put the public in danger. When the crash occurred, the police were in the middle of a shift change which further complicated securing the scene, conducting the investigation and maintaining public safety. Cole was eventually rescued from his truck and was examined by EMTs, to whom Cole admitted that he had taken some meth. Because of the large debris field that spanned an entire block, fourteen police officers remained at the scene to collect evidence and secure the area, which pushed the limits of the small precinct’s manpower. The debris field was not fully cleared until 6:00am—almost eight hours after the crash. Because of the size of the debris field and dangerousness of the scene requiring multiple officers to secure, only one police officer accompanied Cole to the hospital.

Suspected Intoxication Leads to Warrantless Blood Draw

At the hospital, Cole was observed complaining of pain, but also, “tweaking” and shaking—potential symptoms of suspected methamphetamine intoxication. Under a directive from the superior officer on duty, the police officer arrested Cole at 11:38pm and asked Cole for consent to collect blood and breath samples. When Cole refused, the officer read the statutory consequences for failure to consent. Cole interrupted the officer several times to comment that he had not been drinking, rather, he had taken meth. The officer made a request to the hospital for a blood draw, which was done at 12:20am. The results confirmed that Cole’s blood contained amphetamine and methamphetamine.

Cole moved to suppress the evidence at trial, but the trial court overruled the motion. The jury convicted Cole of intoxication manslaughter, sentencing Cole to a life imprisonment. On appeal, the court of appeals held that the lower court erred in not suppressing Cole’s blood draw results because State v.Villarreal “foreclosed on the State’s reliance on the mandatory blood-draw provision found in the Texas Transportation Code, and that, the trial court record did not establish that an emergency (exigency) existed to justify the warrantless blood draw. Cole v. State, 454 S.W.3d 89, 103 (Tex. App—Texarkana 2014). The State appealed to the CCA.

Law Applicable to Warrantless Blood Draws

The Fourth Amendment

The Fourth Amendment to the United States Constitution provides, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. CONT. amend. IV. McNeely informs that blood tests are Fourth Amendment searches that implicate a “most personal and deep-rooted expectation of privacy.” McNeely, 133 S. Ct. at 1558-59 (quoting Winston v. Lee, 470 U.S. 753, 760 (1985)). Case law has determined that “a warrantless search is reasonable only if it falls within a recognized exception.” State v. Villarreal, 475 S.W.3d 784, 796 (Tex. Crim. App. 2015), reh’g denied, 475 S.W.3d 817, (Tex. Crim. App. 2015) (per curiam).

One exception to the Fourth Amendment warrant requirement is a warrantless search performed to prevent imminent evidence destruction when there is no time to secure a warrant. Cupp v. Murphy, 412 U.S. 291, 296 (1973); McNeely, 133 S. Ct. at 1559. Whether law enforcement faces an emergency that justifies acting without a warrant calls for a case-by-case determination based upon the totality of the circumstances. Id. In order for courts to determine whether an emergency existed, courts must analyze the totality of the circumstances based on an objective evaluation of the facts reasonably available to law enforcement at the time of a search, and not based on 20/20 hindsight of the facts as they are known after the fact. Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006); Ryburn v. Huff, 132 S. Ct. 987, 992 (2012)(per curiam).

Texas Transportation Code § 724.012

Texas Transportation Code § 724.012(a) states, “specimens of a person’s breath or blood may be taken if the person is arrested and at the request of [law enforcement] having reasonable grounds to believe the person was intoxicated while operating a motor vehicle.” § 724.012(b) states, “[Law enforcement] shall require the taking of a specimen of the person’s breath or blood…if the officer arrests the person [for DUI/DWI] and the person refuses the officer’s request to submit to the taking of the specimen voluntarily…[where] any individual has died…an individual other than the person has suffered serious bodily injury.”

The CCA Weighs In—What did the CCA Decide and How Did the Judges Reach The Decisions?

In both Weems and Cole, the Court of Criminal Appeals had to determine whether the warrantless blood draws were justified by exigent (emergency) circumstances under a totality of the circumstances review of the facts. It may be surprising that in one case the CCA upheld the legality of the blood draw and in the other case the CCA held that the blood draw was unlawful.  The charts below shed some light on the relevant facts of each case that the CCA reviewed to determine the holdings in each case. As you can see, the cases are quite similar, yet have some striking differences—differences that distinguished each case just enough for the CCA to arrive at opposite conclusions.

Totality of the Circumstances Analysis
Similarities Between Weems and Cole

WEEMS COLE
Refused consent to breath and blood tests. Refused consent to breath and blood tests.
Driver caused car crash. Driver caused car crash.
Driver injured in crash. Driver injured in crash.
Admitted to drinking during initial questioning. Admitted to using meth during initial questioning.
Moved to suppress evidence at trial. Moved to suppress evidence at trial.
Warrantless blood draw. Warrantless blood draw.
Law enforcement claimed “exigency/emergency” as reason for warrantless blood draw. Law enforcement claimed “exigency/emergency” as reason for warrantless blood draw.
Law enforcement concerned BAC would fall over time, destroying potential evidence. Law enforcement was concerned intoxication levels would fall over time, destroying potential evidence.

Totality of the Circumstances Analysis
Differences Between Weems and Cole

WEEMS COLE
Single-vehicle crash. Two-vehicle crash.
Small, rural road. Large, high-traffic intersection.
Two police officers, one who remained on “stand-by”. Entire police department tasked with maintaining and securing the exceedingly dangerous scene.
No deaths as a result of crash. One fatality as a result of crash.
Small debris field. Large “one block long” debris field.
Alcohol was the substance at issue. Meth was the substance at issue.
Alcohol has a ‘known’ dissipation time. Meth has a ‘lesser known’ dissipation time.
Police department’s manpower was not overwhelmed by the crash. Police department’s manpower pushed to the limits by the crash.
Nothing on the record to indicate Weems was going to receive pain medication that would impact the results of a blood test. Hospital was set to give narcotics to Cole because of pain, narcotics that could potentially impact the results of a blood test.

The CCA’s Holding in Weems – Warrantless Blood Draw Improper

In Weems v. State, the CCA concluded that the warrantless blood draw was NOT justified by exigent (emergency) circumstances. The CCA affirmed the holding of the court of appeals that said that § 724.012 of the Texas Transportation Code does not create an exigency exception to the Fourth Amendment and that the trial court did not establish on the record any facts to support a finding of an exigent circumstance. The CCA stated that law enforcement might have had a “temporal disadvantage,” however, the time frame from the crash to the time Weems was transported to the hospital was short and that the police officer who was on standby could have called a magistrate to obtain a warrant, “the hypothetically available officer could have secured a warrant in the arresting officer’s stead.”

Further, even though the hospital took two hours to obtain the sample, such a timeframe would not have been known beforehand by law enforcement, and thus is considered “hindsight.” Hindsight is not factored into the totality of circumstances analyses. Additionally, the police department’s manpower was not completely tied up with the details of Weems’s crash. Lastly, the CCA commented that law enforcement should have protocols in place to process and deal with blood draw warrants in cases where the suspected intoxicated driver is transported to the hospital with injuries, “the record does not reflect what procedures, if any, existed for obtaining a warrant when an arrestee is taken to the hospital.”

The CCA’s Holding in Cole – Warrantless Blood Draw Authorized

In Cole v. State, the CCA held that the trial record established circumstances rendering obtaining a warrant impractical and that the warrantless search was justified under the exigency exception to the Fourth Amendment’s warrant requirement. The case was reversed and remanded to the court of appeals.

The CCA said that the size and severity of the accident scene requiring several police officers to remain on the scene for public safety concerns, the large debris field that required accident investigators extended time to complete the investigation, the fact that someone died in the crash, and the fact that the dissipation rate for methamphetamine is not widely known among law enforcement the way alcohol dissipation in known, are reasons that come together to create a constellation of exigency under a totality of the circumstances analysis.

“Law enforcement was confronted with not only the natural destruction of evidence though natural dissipation of intoxicating substances, but also with the logistical and practical constraints posed by a severe accident involving a death and the attendant duties this accident demanded.” Further, because Cole complained of pain, law enforcement had a legitimate concern that any narcotic drugs administered would impact the outcome of a blood test, rendering the test ineffective for evidence in trial later on.

Justice Johnson did file a dissent in Cole, “I would hold that the circumstances and testimony at trial indicate that a warrant was required.” Justice Johnson says that someone on the police force could have obtained a warrant and had enough time to do so, “this was not a now or never situation that would relieve the state of its burden.”

Where do we go from here?

Birchfield v. North Dakota Supreme Court Breath Test

Should Drivers Face Criminal Charges for Refusing a Breathalyzer Test?

By | DWI

SCOTUS Hears Oral Argument in Birchfield v. North Dakota

Birchfield v. North Dakota Supreme Court Breath TestOn April 20, 2016, the Supreme Court of the United States (“SCOTUS”) heard oral arguments in Birchfield v. North Dakota, a case that consolidates Birchfield with Bernard v. Minnesota and Beylund v. Levi, where the SCOTUS will determine whether the government may, without a warrant, make it a crime for a motorist to refuse to take a blood-alcohol test. Currently, thirteen states make it a crime to refuse any form of drunk-driving tests (breathalyzer, field sobriety, etc.). Birchfield comes on the heels of the 2013 Missouri v. McNeely case, where the SCOTUS held that if police have time, they should get a warrant before taking an invasive test of a suspected drunk driver. Let’s take a look at each consolidated case to understand the big issue before the Supreme Court.

Case #1: Birchfield v. North Dakota

In Birchfield, motorist Danny Birchfield drove his car off of a North Dakota road and subsequently failed a field sobriety test and a preliminary breath test, given by the state highway patrol. At that point Birchfield was arrested, told he had to take another more invasive chemical test, and informed of North Dakota’s implied consent rule. In North Dakota, any individual who operates a motor vehicle on any public or private road in the state is deemed to have consented to a chemical test for alcohol in the blood stream. Birchfield refused to submit to any further testing and was charged with both DUI and Failure to Submit to chemical testing. Birchfield filed several appeals, arguing that North Dakota’s implied consent law is unconstitutional under the 4th Amendment of the United States Constitution. Birchfield is opposed to “refusal” being a crime all by itself.

Read the brief in Birchfield here.

Case #2: Bernard v. Minnesota

In Bernard, police confronted a man who smelled of alcohol on a public boat ramp and asked him to consent to field sobriety tests. Bernard consented to a breathalyzer test after being told of the criminal penalties for refusal. Under Minnesota’s implied consent law, it is a criminal offense for a driver who has been arrested on probable cause for driving while impaired to refuse a chemical test. Minnesota argues that a warrantless breath search is constitutional under the “search incident to an arrest” doctrine. On the other hand, Bernard argues that a breathalyzer is not a valid search incident to an arrest because the search does nothing to further officer safety or to preserve evidence.

Read the brief in Bernard here.

Case #3: Beylund v. Levi

In Beylund, law enforcement observed a car driving erratically and stopping in the middle of the road. The police asked defendant Beylund to consent to chemical testing. At trial, Beylund argued that the test imposed an unconstitutional condition on his driver’s license.

Read the brief in Beylund here.

The Big Issues—Implied Consent or Criminalization of a Constitutional Right?

The highest court will determine whether in the absence of a warrant, a state can make it a crime, in and of itself, for a person to refuse to take a chemical test (blood, breath and urine) to detect the presence of alcohol in the blood? The Supreme Court will likely be examining the following questions to determine the answer to that question:

  • When drivers obtain a driver’s license from a state agency, does a driver impliedly consent to invasive chemical testing to detect the presence of alcohol?
  • Is refusing an invasive chemical test criminal in and of itself?
  • Do citizens have the constitutional right to refuse an invasive chemical test without penalty?
  • Do states have a compelling interest in protecting public roadways from drunk driving so that they may order chemical testing for suspected drunk drivers even without a warrant?
  • Can a government benefit (such as driving on public roadways) be conditioned upon search requirements, even if the search is an invasive chemical test?

Precedent Case: Missouri v. McNeely

Driving While Intoxicated and invasive chemical testing are not new topics to the SCOTUS. In 2013, the Court heard Missouri v. McNeely. Defendant McNeely had been arrested for DUI after failing field sobriety tests. He refused to take a breathalyzer, so law enforcement transported him to a hospital where his blood was removed against his will. After several appeals and suppression hearings, McNeely was heard by the SCOTUS. Chief Justice Sonia Sotomayor reiterated that a blood draw “is an invasion of bodily integrity that implicates the most personal and deep-rooted expectations of privacy.” Although the SCOTUS noted that from time to time cases may arise that will allow for a warrantless blood alcohol test, the Court ultimately held, “in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

What Will the Supreme Court Say About Warrantless Breath Tests?

Several national organizations, such a Mothers Against Drunk Driving (see the MADD brief here) and the American Civil Liberties Union (read the ACLU brief here), have filed amicus “friends of the court” briefs for this case arguing for and against the constitutionally of implied consent laws. In the past decade, 112,998 people have been killed in alcohol-impaired driving crashes. With grim statistics underpinning many of the individual states’ implied consent laws, will the Supreme Court overturn or add to McNeely? It will be very interesting to see how the SCOTUS squares this case with the precedent case law and which legal theory they will select to reach a conclusion.

Failure to Maintain a Single Lane of Traffic DWI Attorney Fort Worth

Failure to Maintain a Single Lane of Traffic Leads to a DWI Conviction

By | Reasonable Suspicion

Does an Officer have “Reasonable Suspicion” to Make a Traffic Stop When Vehicle Weaves Inside a Traffic Lane?

Failure to Maintain a Single Lane of Traffic DWI Attorney Fort WorthJames Leming was convicted of DWI after erratic driving alarmed fellow motorists to call police. On January 20, 2012, a citizen filed a report of a “swerving Jeep” and Officer Manfred Gilow responded. As the dashboard camera confirmed, the Jeep traveled thirteen miles under the speed limit; Gilow followed the Jeep for several miles. Officer Gilow observed the Jeep, “drifting [within the] lane to the left [with] tires on the stripes… back to the right, almost hit[ting] the curb twice.”

Officer Gilow said he did not stop the Jeep immediately because the heavy traffic made a traffic stop unsafe at the time. He wanted to wait until the Jeep approached “the 3000 block because I knew there’s parking lots where he could pull over [safely].” Gilow justified the warrantless stop under the Community Caretaking Exception, “due to the …[low] speed…and…swerving, it was an indication that the driver [was] somehow either distracted or physically not able to operate [his] motor vehicle carefully.”

Eventually, the officer pulled Leming over, noting on the police report, the smell of liquor. Though Leming denied drinking, he said he had taken some prescription pills. Officer Gilow conducted field sobriety tests and placed Leming under arrest for DWI.

Read the full opinion in Leming v. State.

Leming’s DWI Trial and Motion to Suppress the Stop

Before the trial began, Leming filed a motion to suppress the traffic stop, which was denied. At trial, Leming pled guilty to and was convicted of DWI. Because Leming had two prior DWI convictions (a felony under Texas law), the court assessed punishment at ten years’ imprisonment. Tex. Penal Code § 49.09(b)(2).

The Sixth Circuit Court of Appeals reversed the trial court’s ruling, holding that the trial court should have granted the motion to suppress. Leming v. State, 454 S.W.3d 78 (Tex. App.—Texarkana 2014). The Sixth Circuit concluded that Gilow lacked reasonable suspicion to detain Leming for the offense of failure to maintain a single lane under Section 545.0600(a) of the Texas Transportation Code. The court reasoned “in order for it to have been unlawful, the encroachment must have been made unsafely; [here,] there was no real danger of his colliding with another vehicle in an adjacent lane.” The State’s Prosecuting Attorney petitioned the Court of Criminal Appeals for discretionary review, arguing that the citizen’s report coupled with Officer Gilow’s observations were sufficient for reasonable suspicion that Leming was driving the Jeep under the influence.

The Issue Before the Texas Court of Criminal Appeals Regarding the Traffic Stop

The Court of Criminal Appeals had to determine whether a driver must BOTH fail to maintain a single lane AND not change lanes without checking to assure the maneuver can be accomplished safely, before it may be said that a driver has committed an offense. Such an offense would rise to the level of reasonable suspicion for a constitutionally-sound traffic stop.

What Does the Texas Transportation Code Say About Driving Within a Single Lane?

Section 545.060(a) states that “an operator on a roadway divided into two or more clearly marked lanes for traffic (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.”

The CCA Holds that a Driver Must Maintain a Single Lane AND Must not Leave the Lane Unless it is Safe.

The CCA explains that the fact that both the requirement to stay within a single lane as for as practical and the prohibition to not leave that lane unless it is safe to do so, originally appeared in the same subsection of the statute, does not indicate that the Legislature intended that both must be violated before an offense has occurred. Rather, the CCA believes that the Legislature intended a violation of EITHER part of the statute constitutes separately actionable offenses.

The CCA says that Officer Gilow knew from personal observations, as well as from the citizen’s report, that Leming had some sort of trouble maintaining a steady driving pattern while traveling under the speed limit. “That was sufficient information to justify a temporary detention to investigate whether Leming had actually failed at some point to remain in his dedicated lane of traffic as far as it was practical to do so under the circumstances—it matters not whether that failure was unsafe.” Further, Officer Gilow had an objectively reasonable basis to suspect Leming of driving under the influence.

As a matter of principle, the CCA notes, “it [would be] counterproductive and contrary to common sense to set the reasonable suspicion bar for DWI so high that law enforcement must hesitate to investigate such hazardous driving for fear that the stop will later be invalidated.” In a Concurring Opinion, Judge Richardson adds, “I believe [the community caretaking exception] provided justification for the officer’s stop, where, a reasonable police officer—given the totality of the circumstances-would believe [someone] is in need of help.” Dissenting, Judge Keasler stated, “this is a close case…the majority reaches the wrong result by misconstruing the statute and finds reasonable suspicion on the basis of a single insufficient articulable fact.” Judge Newell also dissented in this case.