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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.

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.

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

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

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?

Dismissal Acquittal Double Jeopardy

Dismissal or Acquittal? The Difference Matters

By | Double Jeopardy, DWI

DWI Charge Did Not Include a Year in the Allegation

Dismissal Acquittal Double JeopardyLouis Jarvis, Jr. and his wife Jennifer Jones were charged with driving while intoxicated arising out of separate but related incidents on the same evening. Both pled no contest to the charges against them. But before they were found guilty, it was discovered that neither complaint against Jarvis or Jones alleged a year that the offense was committed. The trial court granted their motions to acquit. The State appealed.

The trial court stated, “The date of an offense is a key element of the offense which must be pled and proved. There is no question that it was not pled in this case nor was any trial amendment requested to amend the Information to amend the pleadings. It is my belief that the law is very clear in this case, that the State accepted its burden of proof and failed to meet it.”

The State filed a motion for a rehearing in the two cases and argued that “acquittals could not be entered because jeopardy had not attached, the trial court had never accepted the no-contest pleas and found the defendants guilty, and effectively dismissing with prejudice the prosecutions was improper.” The trial court denied the motions for rehearing. The State appealed.

10th Court of Appeals Holds that the Acquittals were Actually Dismissals

The Tenth Court of Appeals then reviewed the appeal. The Tenth Court of Appeals disagreed that the State had accepted a burden of proof. The Court held that the State is not required to introduce any evidence to support a plea to a misdemeanor and that the trial court has not authority to weigh the sufficiency of the evidence in a guilty plea to a misdemeanor case. The Court found that the Trial Court’s problem was with the State’s charging instruments, not with the State’s evidence. The Appellate Court concluded that this was not an acquittal but was a dismissal with prejudice without the State’s consent.

This might sound like the same outcome, but it is in fact very different. A dismissal, usually occurring before trial begins, means that a case can be tried again so long as the statute of limitations has not expired. Whereas, an acquittal means that a trial was held (and jeopardy attached) and now the defendant cannot be tried again for this matter. Though these seem like subtle nuances, the difference between an acquittal and a dismissal can have huge implications on the defendant.

Double Jeopardy Does Not Bar Further Prosecution

The Tenth Court of Appeals went on to determine whether Jeopardy attached in Jarvis’s case. The Court determined, “even if jeopardy attached, because, as we have held, the trial court granted a defense motion to dismiss the prosecution on a legal basis unrelated to guilt or innocence and ‘without ultimately addressing the issue of guilt or innocence, there is no double jeopardy impediment to the State’s appeal.’” In essence, because the cases concluded with a DISMISSAL and not an ACQUITTAL, the defendants can now be retried under a new information that alleges the proper date.

For more information, read the court’s full opinion in State v. Jarvis.

Stopped at Canada border for DWI conviction

Crossing the Canadian Border with a Texas DWI Conviction

By | DWI

Traveling to Canada, Eh?  Travel Plans for Some Americans May Be Foiled as Canada Cracks Down on DWI Arrests and Convictions

Stopped at Canada border for DWI convictionDo you have a DWI conviction in Texas (or anywhere in the United States)? Are you traveling to Canada any time soon? If you answered “Yes” to both of these questions, you may be in for a surprise at the border. Even if you have recently been acquitted of a DWI charge, you may still be turned away and deemed “criminally inadmissible for entry.” This article will explain the law and provide some solutions if you find yourself in this dilemma.

Canada’s Immigration Laws Create Anxiety for Americans with DWI Charges

Recently, Canada enacted strict immigration laws making entry into the country by car, plane, train or boat more difficult for United States passport holders who have a DWI arrest or conviction on their record. Regardless of whether the arrest or conviction was a misdemeanor charge, whether you plan to drive while in Canada, or whether the charge happened when you were a juvenile, any DWI charge at all could cause you to be turned away at the border, further damaging chances for success in all Canadian immigration programs for life. Bottom line: travelers with any type of DWI arrest or conviction will face enhanced scrutiny by the border patrol and must comply with additional legal requirements set forth by the Canadian government for entry. It is a better strategy to be proactive and prepared before traveling, instead of reactive and defensive once “caught” at the border.

Unlike the division between federal and state powers in the United States with regard to law enforcement, Canadian criminal law is solely a federal responsibility. As a result, criminal laws are uniformly interpreted and enforced throughout all of the Canadian provinces. Traveling to a different province in the hope of more leniency because of different criminal laws will not be helpful.

The federal Canadian Immigration and Refugee Protection Act (“IRPA”) governs immigration admissibility into Canada. Section 36(b)-(c) of IRPA states, “a permanent resident or a foreign national is inadmissible on grounds of serious criminality for having been convicted of an offense [or committing an act] outside Canada that, if committed in Canada, would constitute an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years.” Basically, IRPA converts any DWI charge or conviction from the United States into a “serious criminal offense” in Canada and allows Canadian authorities to deny entry into the country at border checkpoints on roads, railways, airports, and maritime ports.

Generally speaking, Canada views DWI offenses—even minor offenses—very seriously. However, there are a few options available for travelers who have a DWI on their record. If a traveler wishes to apply for relief, Canadian officials will assess the following: number and type of offense(s), when the sentencing for the offense(s) was completed, and the severity of the offense(s). The three solutions below are the most popular options for relief for travelers with DWI history, however, they are not an exhaustive list of all of the application and appeals procedures, so please consult an attorney for specific details on your particular case.

Solutions For Gaining Permission to Enter Canada with a DWI

Option 1: The Temporary Resident Permit (“TRP”)

The TRP allows a traveler with a DWI to gain entry Canada on a temporary basis. The permit can be issued for any length of stay, up to a period of three years, and the traveler must state the reason for the visit (for example, family or school). Travelers should apply for the TRP if their most recent offense occurred within the last five years. According to the Canadian Immigration Newsletter, this type of permit may take six months to a year to process.

Option 2: Criminal Rehabilitation

Travelers seeking to permanently resolve their inadmissibility issues can apply for Criminal Rehabilitation. Essentially, the traveler with a DWI charge or conviction is asking the Canadian government to forgive their DWI history. In order to be eligible, more than 5 years must have passed since the completion of one’s most recent sentence (which may have included alcohol classes, counseling, fines, jail or prison time, community service, community supervision, driving courses, probation, etc.). Rehabilitation applications can take a year or more to process. It is possible to have a TRP while one is applying for Permanent Criminal Rehabilitation, so that one has the ability to travel to Canada in the interim while waiting on the resolution of the Criminal Rehabilitation application.

Option 3: Deemed Rehabilitation

If a traveler has only one single DWI conviction where more than 10 years have passed from completion of the full sentence (for example jail or prison time, fines paid, reinstatement of driver’s license, etc), an individual may be deemed rehabilitated by virtue of the time that has elapsed. However, even if you fit this category, it is probably still a good idea to have prepared an affidavit or letter explaining the incident to Canadian border officials because full disclosure is critical to overcoming the barriers to entry. Trying to hide a conviction or denying altogether that you have one are sure fire ways to be denied entry permanently into the country.

Getting into Canada with a DWI is not as easy as showing up to the border checkpoint with a valid passport and a smile. Don’t be caught by surprise at the border! To increase your chances of admissibility into Canada, it is a good idea to talk with an attorney who will help you take the proactive steps before your trip so that you have the greatest possible chance of gaining approval for entry.

Tarrant County DWI Court Nekhom

Tarrant County Starts New Misdemeanor DWI Court Program

By | DWI

Judge Deborah Nekhom to preside over Tarrant County’s new DWI Court Program for Misdemeanor DWI Cases

Tarrant County DWI Court NekhomTarrant County has many specialty court programs for various types of criminal cases, but for DWI cases, the only specialty program available was limited to felony-level cases – the Felony Alcohol Intervention Program (FAIP). Not anymore. After much debate, Tarrant County started a new specialty court designed for misdemeanor DWI cases (it is not currently listed on the county’s website). The program officially began on March 30, 2016.  Judge Deborah Nekhom in County Criminal Court 4 is the presiding judge over the new DWI Court and she is dedicated to making it a success.

DWI Court is Designed for High-Risk / High-Need Offenders

The goal of the new DWI Court is to identify high-risk DWI defendants and intervene so that they do not end up with a felony DWI down the road. With the help of defense attorneys and clinical specialists, the program seeks to identify defendants with significant substance abuse issues, who are in need of serious help. While the specifics of the program are still being ironed out, our firm has been told that there will be strict oversight and accountability for all participants so that they can have the best chance of successfully completing the program and their DWI probation.

What are the benefits of the Tarrant County DWI Court?

The main benefit of participating in the new DWI Court is that participants will receive the counseling and support they need to overcome their addiction and live a health, productive, alcohol-free and drug-free lifestyle. In addition, some of the following benefits have been discussed and are being implemented:

  • Probation time is reduced after completion of the program, allowing participants to enter into a non-reporting status;
  • Waiver of DWI fines (up to $4,000)
  • No program fees
  • *Dismissal of the underlying DWI charge and allowance for a Non-Disclosure (*this expires on 1/1/17 with changes to the Texas Government Code)

Several other benefits are being considered and are not ripe for public discussion at this point.

How Do I Get a Client into the DWI Court?

If you have a client that would be a good candidate for misdemeanor DWI Court, you should get him or her an assessment ASAP to determine whether they are classified as high-risk / high-need. You should then discuss the option of DWI court with the presiding judge of your client’s DWI case. If, after seeing the assessment, the judge agrees that DWI court is a good option, he or she will transfer the case to CCC4 after your clients enters a plea of guilty to the DWI.

Contact Us for More Information About DWI Court

I realize that this article does not provide a lot in the way of specifics about the new program, but it only started yesterday and there are not a lot of specifics to publish at this point. If you have some questions, our DWI defense attorneys would be happy to answer them if we can. Contact our office at (817) 993-9249.

No Refusal Weekends for DWI in Fort Worth, Texas

No Refusal Weekends in Texas | DWI Blood Search Warrant

By | DWI

What you need to know about No Refusal Weekends in Texas | Fort Worth DWI Attorneys

No Refusal Weekends for DWI in Fort Worth, TexasThroughout the year, as various holidays approach (Christmas, New Year’s, Super Bowl weekend, 4th of July, etc.), we receive questions about “No Refusal Weekends,” in which police agencies crack down on driving while intoxicated or DWI. It is important that Texas motorists understand the rules of the road, so that every holiday season remains merry and bright. Many have seen the “No Refusal” notices on electronic road signs, heard the “No Refusal” advertisements on the radio, or watched stories on the news related to “No Refusal” for suspected drunk driving. What is “No Refusal” and how does the law impact your holiday travel? Understanding a few basic things about the law could help you in the event of a traffic stop or a detention by a law enforcement officer.

What is No Refusal Weekend?

No Refusal Weekend refers to a short period of time, typically a holiday weekend or the weekend of a special event, such as the Super Bowl, where law enforcement advertises the ability to conduct routine traffic stops, detaining motorists for suspected DWI. During the stop, law enforcement requests a blood or breath sample, and, if the motorist refuses to comply, law enforcement immediately contacts a judge or magistrate who is designated “on call” during the No Refusal time frame. If the law enforcement officer conveys to the judge that (1) there was reasonable suspicion to detain the motorist for a traffic or criminal offense, and, (2) there is probable cause to believe the motorist is driving under the influence of drugs or alcohol, then the judge quickly issues a search warrant for the sample. Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. At that point, law enforcement may call for a phlebotomist to take the sample on site, or may transport a motorist to a facility to obtain the sample. If all goes according to plan, “no refusal” speeds up the process by which law enforcement obtain samples used for DWI/DUI arrests. Further, the sample becomes evidence for trial.

What is the purpose of No Refusal Weekend?

The entire No Refusal process from detention to arrest is faster in theory, the goal being to catch motorists who are driving under the influence quickly, and to capture the highest blood alcohol content (“BAC”) possible. In Texas, a BAC level of .08 is considered legally intoxicated. No Refusal Weekend differs from a DWI stop on regular days by it’s speed — the quick phone call to an “on call” judge who is waiting by the phone to issue warrants — and it’s deference to law enforcement in the moment. So what does this mean for you, the Texas motorist?

You have the right to refuse blood and breath tests initially.

The term No Refusal sometimes confuses motorists. Many believe they cannot refuse a law enforcement officer’s request for a sample during a No Refusal period. Not true. On No Refusal Weekend motorists still have the right to refuse to provide blood and breath during a traffic stop. However, if law enforcement obtains a search warrant for blood, the motorist must comply; failure to comply may result in additional charges. Once the officer has a warrant in hand, the rules change. But before the officer obtains a warrant, you can refuse to provide breath or blood and you may refuse to submit to field sobriety tests. For notifications about when No Refusal Weekends begin in the Dallas Fort Worth area, and to know your rights if you are stopped by an officer, download our free App from the App Store or Google Play — know your rights before you go out!

*Note: Refusal of a breath or blood test may result in temporary loss of driving privileges, even if the officer later obtains a warrant to conduct the search.  The courts will typically grant an occupational driver’s license to work and household tasks.

Warrantless searches for blood alcohol content in DWI cases violate the Fourth Amendment.

The No Refusal law comes from an “implied consent” provision in the Texas Transportation Code. The 2007 law states, “if a person is arrested for…operating a motor vehicle in a public place…while intoxicated…the person is deemed to have consented…to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.” Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. However, in 2014, the Texas Court of Criminal Appeals held that “warrantless, nonconsensual testing of a DWI suspect’s blood does not…fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a…Fourth Amendment balancing test.” State v. Villareal, PD-0306-14 (Tex. Crim. App. 2014).  See also, the US Supreme Court’s opinion in Missouri v. McNeely. In summary, a motorist may refuse a blood or breath test upon an initial request by law enforcement, but after a warrant is obtained from a judge, a motorist may not refuse at that point because it is mandatory—hence the name No Refusal.

Please take the time to know your responsibilities and rights before heading out on No Refusal Weekends in Texas. Download our App on the App Store or on Google Play for the latest information on No Refusal Weekends. Have a safe and happy holiday season! This article is for educational purposes only and does not take the place of legal advice. If you are in need of a DWI attorney, please contact our office for a free consultation at (817) 993-9249.

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Public Intoxication Charges in Texas

What is the Punishment for Public Intoxication in Texas?

By | DWI

Is a Texas Public Intoxication charge a serious offense? What is the Possible Punishment for a PI in Tarrant County?

Public Intoxication Charges in TexasWe often receive calls or emails from people in Tarrant County who have been arrested for or cited with Public Intoxication (PI) in Fort Worth. Typically, they contact us to determine how serious a PI charge is in Texas and what the possible punishment might be. They want to know whether this is something they should handle on their own or whether they need a criminal defense attorney to help.

Generally, Public Intoxication in Texas is a Class C misdemeanor. Some might tell you that a Class C misdemeanor is the same as a traffic ticket and that is somewhat true. However, some Class C convictions can have a much larger impact on your future than a simple speeding violation. So when someone asks me whether they need an attorney to help them handle a PI, I tell them yes. You won’t need to pay an arm and a leg, but a criminal defense attorney can help ensure that your rights are protected throughout the process and can, hopefully, set your case up for a dismissal and an expunction down the road.

Public Intoxication Punishment When the Offender is 21 Years of Age or Older

Section 49.02(c) of the Texas Penal Code provides that Public Intoxication in Texas is a Class C Misdemeanor, which is punishable by a fine not to exceed $500.00. However, if a person has two prior Public Intoxication convictions on their record, a third PI can be enhanced to a Class B misdemeanor, which has a range of punishment of up to 180 days in the Tarrant County jail and a fine up to $2,000. This enhancement provision is one of the big reasons that it pays to hire an attorney for each and every Public Intoxication violation in Texas.

Should You Plead Guilty to a Public Intoxication Charge in Texas?

Sure it is easy to just plead guilty, pay the fine, and get on with life. However, a conviction for a PI, even though it is only a Class C offense, can have a lasting negative impact on your job prospects, military or college admissions, and more. As stated above, a PI conviction can also count toward a future enhancement charge or possible even evidence during sentencing in a DWI trial. If you do plead guilty, please do so after consultation with a criminal defense attorney in your area.

Public Intoxication Punishment When the Offender is Under 21 Years Old

There are different rules for persons under 21 in Texas. As you probably know, person under 21 are not allowed to consume any amount of alcohol, so the legislators drafted special rules for them. Section 49.02(e) of the Texas Penal Code Section relates to minors and states that minors would face the same punishment as if they committed an offense under Section 106.071 of the Texas Alcoholic Beverage Code. Here are the highlights for you:

  • A person under 21 can be enhanced to a Class B misdemeanor for a 3rd PI, just like a person over 21 can
  • A first time conviction for Public Intoxication can result in a driver’s license suspension.
  • The fine for PI for a person under 21 is between $250 and $500.
  • Mandatory community service.
  • Alcohol education course or alcohol awareness program.

Fort Worth Public Intoxication Defense Attorneys

If you have been arrested in Tarrant County for Public Intoxication, contact our Fort Worth public intoxication defense attorneys today for a free consultation of your case. We can help you get your PI dismissed and then help you get the entire thing expunged from your record.  Call us today at (817) 993-9249.

Impersonating a Public Servant in Texas

Man Pretends to be a Dallas District Attorney and Receives 2 Years in Prison

By | Criminal Defense

Impersonating a Public Servant in TexasWhen I think of someone impersonating an attorney, my mind goes to Joe Pesci and My Cousin Vinny.  In the movie Vincent Gambino only impersonated a criminal defense lawyer (not a public servant) so nobody seemed to care (except the judge), but in Texas, Impersonating Public Servant (including a district attorney) is a serious matter.  Robert Cornwell found this out after he pretended to be a Dallas County Assistant District Attorney in hopes of helping his friend with a DWI case.

In May of 2012, Robert Cornwell called Montgomery County Assistant District Attorney Kourtney Teaff, identifying himself as an assistant district attorney from Dallas County, attempting to “resolve [his friend’s] [DWI] case.” Cornwell claimed access to criminal histories, case files, and fingerprint cards. He mentioned speaking with governmental offices, and prosecuting his nephew for drug possession. Cornwell insisted on using his personal cell phone number because he and Teaff “were on the same team.” Becoming suspicious of the “highly unusual” requests coming from another district attorney, Teaff recorded the conversations. According to the trial court, Cornwell always used his real name, he had never been an attorney in Texas, he never attempted to claim official authority over Teaff, and he intended that “Teaff should consider the requests a personal favor.” Cornwell was sentenced to two years imprisonment for impersonating a public servant.

See the opinion in Cornwell v. State

What does “Impersonating a Public Servant” mean in Texas?

Impersonating a Public Servant is a Third Degree Felony with a punishment range of 2-10 years in prison and up to a $10,000 fine.  A person violates Section 37.11(a)(1) of the Texas Penal Code when the person impersonates a public servant in combination with the requisite intent…[which] can be satisfied with either the submission theory (“with intent to induce another to submit to his pretended official authority”) or the reliance theory (“with the intent to induce another…to rely on his pretended official acts.”).

Cornwell appealed to the Court of Appeals, arguing that the evidence was insufficient to show either theory of intent—submission or reliance—because he did not persuade Teaff to submit to any asserted authority he might have over her. The Court of Appeals rejected Cornwell’s argument, “concluding that the evidence was…sufficient to support a jury finding that he had impersonated a public official with intent to induce another to rely on his pretended official acts—the reliance theory.” Cornwell then petitioned the Court of Criminal Appeals (“CCA”) for discretionary review.

Here, the CCA determines whether the Court of Appeals was incorrect in misconstruing the meaning of the Section 37.11(a)(1) of the Texas Penal Code, as only “a few Texas appellate courts have directly addressed the reliance theory of intent, and specifically, the meaning of pretended official acts.” See Ex Parte Niswanger, 335 S.W.3d at 617 & n.11; Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet. ref’d.); Tovar v. State, 777 S.W.2d 481,489 (Tex. App.—Corpus Christi 1989, pet. ref’d.).

The CCA Clarifies what “Impersonating” means (and doesn’t mean).

The CCA explained that Section 37.11(a)(1) can be broken down into two parts: the culpable act (actus reus, the bad act) and a culpable mental state (mens rea, the guilty mind). To violate the statute, the State must prove:

  1. that the impersonation happened and
  2. that the impersonator had the specific intent to induce another to submit or to rely upon.

“An accused may not be convicted on a simple showing that he falsely held himself out to be a public servant.”

Because it was undisputed that Cornwell did impersonate a public servant—an assistant district attorney from Dallas County—satisfying the first part of the statute, the CCA focused on Cornwell’s mental state, specifically the reliance theory—the evidence that shows Cornwell’s intent to induce another to rely upon his pretended official acts. The CCA explained that Cornwell attempted to persuade Teaff he was “an experienced assistant district attorney by relating various claims of conduct he had undertaken as an assistant district attorney” namely, “putting his nephew in jail, reviewing case files, and investigating matters in the capacity of assistant district attorney.” The CCA is adamant that, “the only reason [Cornwell] could have had for relaying these pretended official acts to Teaff was to enhance the credibility of his claim to be an assistant district attorney.” “By calling and speaking to an assistant district attorney as a member of the same team, [Cornwell]…hoped to gain [Teaff’s] trust and goodwill.” Further, Cornwell did not ask for favor[s] in his capacity as a private citizen or concerned friend, rather, he asked under the guise of being an assistant district attorney. The CCA states, such “purported actions exceed mere false identification as a public servant.” The CCA agreed with the Court of Appeals, affirming Cornwell’s conviction and sentence.

There are no shortcuts to due process. The Texas Penal Code prescribes strict punishment for those impersonating officers of the court. There is no doubt that criminal charges and allegations can make the accused feel panicked and overwhelmed, however, the old adage “desperate times call for desperate measures,” will not hold water in court where impersonation is concerned. If you or a loved one are facing criminal charges, contact an actual Texas attorney who will explain the proper steps in dealing with the legal system. Contact our office today for a free consultation at (817) 993-9249.

Community Caretaking Fort Worth

“Hunched Over” Passenger Not Enough Distress to Invoke the Community Caretaking Exception

By | Criminal Defense, DWI

Community Caretaking Fort WorthWhile conducting a preventative patrol on the Fourth of July in 2013, a Fort Worth police officer stopped at a red light beside Cameron Byram’s vehicle. Both vehicles had the windows rolled down. The officer testified at trial that he noticed a female passenger in Byram’s car “hunched over…[and that he]…didn’t see any movement at all [from] the female.” The officer smelled alcohol coming from Byram’s car, and felt Byram was “not attending to the female passenger.” The officer shouted over to Byram, asking if she was alright, but Byram faced forward and drove away when the light turned green. Believing the female passenger needed medical attention, coupled with Byram’s actions “as an attempt to avoid contact with the police,” the officer stopped Byram’s car to conduct traffic stop. The officer checked on the passenger and called for medical attention, which she later refused. Next, the officer investigated and arrested Byram for driving while intoxicated (DWI). The officer testified that Byram had not committed a traffic offense, nor were there any technical violations on Byram’s car—he only stopped the car to perform a safety check.

Byram v. State (2nd Court of Appeals – Fort Worth, 2015)

***UPDATE – This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion.

After his motion to suppress the evidence for the DWI charge was denied, Byram entered a guilty plea. The trial court assessed punishment at ninety days in jail and a $750 fine, but suspended the sentence, placing him on community supervision for eighteen months. Byram appealed.

The issue before the Fort Worth Court of Appeals is whether the community caretaking exception to the Fourth Amendment applies to the facts of the case, or, whether the police officer had reasonable suspicion to stop Byram.

The Fourth Amendment provides a safeguard against unreasonable searches and seizures. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). A warrantless arrest is considered unreasonable unless it fits into an exception, such as the community caretaking exception. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 2135 (1993); Torres, 182 S.W.3d at 901. A search or seizure “is not unreasonable” when community caretaking is the goal, however, the exception is “narrowly applied” in the “most unusual of circumstances.” Wright, 7 S.W.3d at 152.

“Courts consider four non-exclusive factors in determining whether the officer’s belief that the defendant needed help was reasonable: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.” Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).

First, the Court of Appeals concludes that the passenger did not exhibit distress. “The passenger did not appear to be in any great distress, she was located in a busy area of town where there were nearby hospitals, she was not alone [in the car], she was in public, and she did not appear to be a danger to herself or others.” Further, the Court of Appeals states, “We…cannot conclude that the…community caretaking exception, when applied to a hunched over passenger…indicates that the passenger presented a danger to herself or others.”

Second, the Court of Appeals determines that the officer lacked reasonable suspicion to be able to perform a safety check. “[While] we do not question the good faith of [the officer’s] subjective suspicion that Byram might have been involved in an alcohol-based offense…so long as consumption of alcohol is not illegal…permitting…investigation of persons for alcohol-based offenses solely on whether the odor of alcohol is present invites unwarranted police intrusions.” Byram’s traffic stop violated his Fourth Amendment rights.

Justice Sue Walker dissents, stating the passenger was exhibiting signs of distress because she “was not moving and appeared unconscious.” The passenger was also in a vehicle driven by a man “who appeared unconcerned about her well-being.” The passenger’s access to assistance was doubtful because Byram did not respond to the police officer’s question about her condition. Lastly, the passenger was a danger to herself because she appeared unresponsive and unable to ask for help. “Thus, all four factors…support the reasonableness of the officer’s belief that she needed assistance.”

Law enforcement officers must abide by local, state and federal procedural and substantive laws when conducting traffic stops and arrests. If you or a loved one is facing DWI charges or traffic violations, please contact our office today for a free consultation at (817) 993-9249.