Frisco DWI Lawyer & Attorney Blog

Cops Above the Law

friscolaw@gmail.com (Hunter Biederman) — Fri, 19 Jun 2009 00:29:07 -0800

In a DWI case, it is the officer's opinion that the accused is guilty being the main source of evidence in the case. Juries are then asked by the State's attorneys to trust the officer, that his/her judgement was correct.

A friend sent me this picture yesterday which demonstrates how officers always use good discretion. This is parked in front of the Collin County Courthouse.

Damn Your Drunk Tests Are Hard!

friscolaw@gmail.com (Hunter Biederman) — Sun, 10 May 2009 15:40:30 -0800

I dont usually post video clips. Especially because every time I see one posted, I've seen it 50 times already. But here is an old one, that I have just never seen before. From the 1983 Steve Martin movie, "The Man With Two Brains." Enjoy.

DWI Defense Project Seminar - Live Blog - Cross Examining the State's Expert in a Breath Test Case

friscolaw@gmail.com (Hunter Biederman) — Fri, 08 May 2009 10:11:01 -0800

So far, the best lecture has been put on by Attorney Mimi Coffee. Mimi practices in Ft. Worth, and also Dallas, I believe.

She went over how to knock a breath test down, piece by piece, and get show how low the score could be. Her speech was a significantly easier topic, considering Texas uses the old and outdated Intoxilyzer 5000.

First, you go through the setup stage during your cross examination.

- Always give the D the benefit of the doubt: This is done mostly in voir dire. Usually the experts that I've seen will say that they go with the lower score "to give the benefit of the doubt."

- Dont know what the 3rd blow would be: Most will readily agree with this. We don't know what the 3rd blow will be.

- set up .02 margin of tolerance, precision: This one is pretty easy to set up as well. With the Intoxilyzer 5000, Both breath samples must be within .02 of each other to get a valid result. (Interestingly enough, in Oklahoma, it is .03. I never knew that).

- not possible to metabolize .01/.02 in 2 minutes: If the 2 scores are off of each other, you should establish that this isn't the person metabolizing the alcohol within a few minutes of the test. Usually the 2 "subject samples" are not equal. The State's witness will always agree with this.

- up down variance in 2 scores does not show metabolism: One common misconception of juror is that you can tell if someone's BAC is going up or down which correlates to the 2 subject samples going up and down. I have seen prosecutors in Collin county say "you see how the 2nd breath score is lower than the first? That means his BAC was going down -- therefore, his BAC was higher at the time of driving!" I'm not sure if they were purposely lying, or just green, but either way, even the State's expert will agree this is false.

.01 predicted value must agree with actual value: This is for the reference sample. The reference sample is mixed up to supposedly be .08. As long as it is within .01, the intoxilyzer 5000 says "OK".

-retrograde / # of drinks in a normal drinking spree one would have to consume (not what's present in one's system): You may be able to get the breath score lower by successfully arguing that your client was lower at the time of driving.

- air blank is not .000: Apparently when the machine says .000, it's not really .000. Depending on what expert you get, .000 can actually be as high as .009. (Some experts will say .005).

- Dr. AW Jones, breath temperature: According to Dr. Jones, breath score can be affected by the breath temperature.

- Tolerance - "Texas Breath Alcohol Testing Program Operator Manual, ethanol section, p.47 -- has the actual definition. Basically, you cant fake a BAC. Tolerance wont affect the score.

The below example is based on a .14 breath test:

Defendant's Breath Score	.014
Intrinsic Margin	-.010
Margin of Tolerance	-.020
Air Blank Fallacy	-.009
(.6.5%* (37degrees - 34 degrees).140)	-.027

Scientifically giving benefit of doubt to a Defendant	-.074

DWI Defense Project Seminar - Live Blog - ALR Update & Keys for Obtaining Blood Evidence

friscolaw@gmail.com (Hunter Biederman) — Fri, 08 May 2009 08:38:24 -0800

Well, the ALR Update and "They key to obtaining evidence for a blood test case" is going on now.

So far, all of the updates that were given, I have covered in the past. Most of them deal with items I have already gone over in a the past post "Everything You Need To Know About the New ALR Rules. I'll stick to new things I learn. . . Mostly about the blood test cases, especially voluntary blood draws. Because if it is a blood warrant case, SOAH just deals with the case as a refusal, so not much changes.

The speaker said he spoke to a local SOAH judge, who said that he needs to really go over the new changes. Because in their opinion, there have only been 5 attorneys who are now doing it correctly! (I assume I'm in that minority!!)

BLOOD ISSUES:

-You can ask for a subpoena for the people that did the blood analysis. However, the judge in the case is the one that must grant the subpoena request. I'm not really sure this will get us anywhere.

That's it. Nothing more was mentioned. What a disappointment. This was the single most important issue that I think would have helped me defend my clients from this seminar. All the time was spent discussing the new rules, and nothing about how to get evidence in blood test cases. Yuch. Very disappointing.

DWI Defense Project Seminar - Felony DWI Selection

friscolaw@gmail.com (Hunter Biederman) — Fri, 08 May 2009 06:39:00 -0800

Right now I'm listening to a speaker talking about Felony DWI Jury Selection, and really Felony DWI's in general.

Felony DWI's are a much different beast than the misdemeanor DWI. This is because of:

a) The punishment range. Felony DWIs (usually DWI 3rds or higher) have punishment ranges from 2-10 years in prison.
b) The jury knows about your 2 priors

One of the suggestions given by the speaker is that you get your client tested immediately for substance abuse. This is as a precaution for later, even if you are going to fight the case. Just in case your client is convicted, this will assist in gaining probation after the trial.

One of the benefits to the jury knowing about the 2 priors, is that you get to discuss this with them during jury selection. Plus, if they say that they cannot be fair in the case, and automatically assume that if your client did "it" 2 times before, he probably did it this time, they will be booted off the jury. This can be a huge advantage, in that you are really getting off many of the people that would be very State's oriented.

-Know the terrain: So true, you must know the nuances of the counties. Some counties are significantly tougher on punishment. This is important to know when advising your client of whether or not to take a plea deal. For instance, if you are in a county that routinely gives large prison sentences for Felony DWI's, an offer of probation might not be too bad of a deal. The truth is, in the end, it is always up to the client of whether or not to go trial, however, they can only make informed decisions with attorneys who know the local terrain.

Live Blogging - From the DWI Defense Project, Dallas

friscolaw@gmail.com (Hunter Biederman) — Fri, 08 May 2009 05:55:48 -0800

Thought I'd give the "live blogging" thing a try today. Today I am attending the DWI Defense Project seminar at the Belo Mansion in Dallas.

Topics covered today are:

- Felony DWI Jury Selection
- Blood Testing: What you must know about the science
- Defending Hospital Blood Draws
- ALR: The key to obtaining evidence in a blood test case
- Cross Ex. of the State's expert in a Breath Test Case
- Exposing Flaws in the Search Warrant of a DWI Blood Test Case
- DWI Trial Strategy
- Pretrial Motions to obtain Evidence to give your blood test expert
- Ethics in a DWI Trial
- Voir Dire Strategy : Positioning to Win

I wonder if other bloggers will be joining me live in the discussion? I know Robert Guest told me he'd be here. Not sure if Shawn Matlock, Jamie Spencer, or maybe even Mark Bennett from Houston will be here??? I know Troy Burleson has court obligations and cannot attend . . .

Can I Keep My License From Being Suspended in a DWI?

friscolaw@gmail.com (Hunter Biederman) — Mon, 27 Apr 2009 09:26:50 -0800

I get this question all the time:

Can I keep my license from being suspended in a DWI? I thought the license suspension was automatic.

The answer is, YES, you can keep your license from being suspended. I previously explained the ALR process (Administrative License Revocation) in a past post.

I get very frustrated about ALR's, especially because there are a lot of lawyers giving absolutely horrible advice out there. Many lawyers tell prospective clients that you cannot win ALR hearings. This is simply not true. MOST LAWYERS WHO TELL PEOPLE YOU CANNOT WIN EITHER ARE TOO IGNORANT TO FIGHT FOR THEIR CLIENTS, TOO LAZY TO FIGHT, OR SIMPLY DON'T HAVE THE EXPERTISE TO WIN THESE HEARINGS.

The statement that you cannot win, so don't try usually comes from some attorney who gains most of his income from bailing people out of jail at 4:00 AM. Yes, there are some attorneys who do this who are great attorneys, but many simply need the business because a of lack of referrals or repeat business.

I am often asked about how often we win. This past weekend I spent time going through all of our past results on ALR cases.

In 2007, the Sunset Commission did a study on ALR hearings. DPS issued 100.472 notices of suspensions. Of those, only 6,980 were able to keep their driving privileges. This means, Statewide, only 6.9% of people keep their driving privledges.

Our firm, since 2006, kept accurate records on every DWI case we handled an ALR hearing. Of those cases, 51.6% of our clients kept their driving privledges.

So is it possible to win these hearings and keep your driving privileges? Yes! But remember, you only have 15 days to request a hearing on your license suspension. If you miss that window, the license suspension will be automatic.

New DWI Bill #5 - SB 3123

friscolaw@gmail.com (Hunter Biederman) — Wed, 15 Apr 2009 09:13:46 -0800

A new bill proposed in the Senate by Senator Whitmire seems to be the same as that of HB 1906.

The bill deals with lowering the surcharge for someone who successfully completes the DWI/Drug Court program. As I stated before, this only helps someone that completes the course, which can be 2 years or more later. This means that the bill does not really save the person much. It would be a better bill if the savings were upon entering the DWI court program. I would even be in support if those savings were only temporary and became permanent after successful completion. I think that would be a better idea.

Below is the text of the entire bill:

A BILL TO BE ENTITLED

AN ACT

relating to the amount of a surcharge assessed on conviction of certain intoxicated driver offenses on the driver's license of certain persons who complete a drug court program.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 469, Health and Safety Code, is amended by adding Section 469.010 to read as follows:

Sec. 469.010. REDUCTION IN AMOUNT OF ANNUAL SURCHARGE ON SUCCESSFUL COMPLETION OF DRUG COURT PROGRAM. (a) A judge or magistrate administering a drug court program under this chapter may order the Department of Public Safety to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code, on the license of a person finally convicted of an offense relating to the operating of a motor vehicle while intoxicated to an amount that may not be less than 20 percent of the amount specified by that section, if the judge or magistrate enters a written finding in the papers in the case indicating that the person:

(1) successfully completed a drug court program under this chapter; and

(2) has not been arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code, during the 180 days after the date of the program completion.

(b) On a timely request by the defendant, the judge or magistrate shall enter the written findings under Subsection (a) and promptly send a copy of those findings to the Department of Public Safety accompanied by the court's order to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code. On receipt of a copy of the written findings under this subsection, the Department of Public Safety shall reduce the amount of the surcharge assessed to the amount specified in the court's order.

SECTION 2. The change in law made by this Act applies to a person who, on or after the effective date of this Act, enters a drug court program under Chapter 469, Health and Safety Code, regardless of whether the person committed the offense for which the person enters the program before, on, or after the effective date of this Act.

SECTION 3. This Act takes effect September 1, 2009.

New DWI Bill #4- HB 3733

friscolaw@gmail.com (Hunter Biederman) — Tue, 14 Apr 2009 09:05:17 -0800

A new House Bill proposed by Representative Coleman affects the surcharges assessed on those convicted of DWI. Right now, if you are convicted of DWI first, you owe the state $3,000 over 3 years just to keep your driving privledges.

The bill seems to say that the 3,000 is now a maximum surcharge, instead of it being the automatic surcharge. It would be based now on the "seriousness of the charge, the amount necessary to deter future violations, and an amount that maximizes collection."

I like the idea of this, except it doesnt seem to really say who determines how much the amount is, and why! Nor does it seem to give you any kind of due process, like a hearing to present to a judge or magistrate why you think your surcharge should be less. Basically it seems like a proposal with no teeth.

The bill also makes some changes to the plea bargaining process. It provides that anyone pleaing guilty must be given notice about the surcharge. I like this idea, but it is mostly for people who are hiring non-DWI lawyers. Any DWI lawyer worth their salt is going to be informing their clients about the surcharge. At our firm, we speak about it during the initial consultation along with paperwork about the potential surcharge. And in any plea of guilty or not guilty, we ALWAYS discuss the ramifications of the potential surcharge.

Below is the entire text of the bill:

A BILL TO BE ENTITLED

AN ACT

relating to the administration of the driver responsibility program.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter A, Chapter 708, Transportation Code, is amended by adding Section 708.004 to read as follows:

Sec. 708.004. DEPARTMENT'S DETERMINATION OF AMOUNT OF SURCHARGE. The department by rule shall set the amount of a surcharge to be assessed under this chapter on a person's license. The amount may not exceed the maximum amount allowed by this chapter for a surcharge based on points or a conviction, as applicable. The amount shall be based on:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2) the amount necessary to deter a future violation; and

(3) the amount that maximizes the collection of surcharges by the department.

SECTION 2. Section 708.054, Transportation Code, is amended to read as follows:

Sec. 708.054. AMOUNT OF POINTS SURCHARGE. The amount of a surcharge under this chapter may not exceed [is] $100 for the first six points and may not exceed $25 for each additional point.

SECTION 3. Section 708.102(c), Transportation Code, is amended to read as follows:

(c) The amount of a surcharge under this section may not exceed [is] $1,000 per year, except that the amount of the surcharge may not exceed [is]:

(1) $1,500 per year for a second or subsequent conviction within a 36-month period; and

(2) $2,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed.

SECTION 4. Section 708.103(b), Transportation Code, is amended to read as follows:

(b) The amount of a surcharge under this section may not exceed [is] $250 per year.

SECTION 5. Section 708.104(b), Transportation Code, is amended to read as follows:

(b) The amount of a surcharge under this section may not exceed [is] $100 per year.

SECTION 6. Section 708.105, Transportation Code, is amended by adding Subsections (c) and (d) to read as follows:

(c) Before accepting a plea other than a plea under Article 27.14(d), Code of Criminal Procedure, the court must provide a defendant charged with an offense described by Section 708.102, 708.103, or 708.104 the following statement and require the defendant to sign the statement:

"A conviction for the offense charged will result in the assessment of a surcharge that will be imposed annually for a period of 36 months under the Driver Responsibility Program."

(d) The statement provided to a defendant under Subsection (c) must also state the maximum amount of the annual surcharge as provided by Section 708.102, 708.103, or 708.104. The copy of the statement signed by the defendant shall be retained by the court.

SECTION 7. Section 708.157, Transportation Code, is amended by amending Subsection (c) and adding Subsection (d) to read as follows:

(c) The department by rule shall [~~may~~] establish an indigency program to reduce the surcharge on a person's license if the department determines that the person is indigent [~~for holders of a driver's license on which a surcharge has been assessed for certain offenses, as determined by the department~~]. The department shall require a person to submit proof of indigency.

(d) For purposes of this section, a person is indigent if the person's income is not more than 100 percent of the applicable income level established by the federal poverty guidelines.

SECTION 8. (a) Not later than October 1, 2010, the Department of Public Safety shall adopt initial rules determining the amount of a surcharge on a person's driver's license under Chapter 708, Transportation Code, as amended by this Act. Not later than October 1 of each subsequent year, the Department of Public Safety shall review its rules and determine whether the amount of a surcharge should be increased or decreased.

(b) A surcharge imposed under Chapter 708, Transportation Code, before the effective date of the initial rules adopted by the Department of Public Safety under Subsection (a) of this section is governed by that chapter as it existed on the date the surcharge was imposed, and the former law is continued in effect for that purpose.

SECTION 9. This Act takes effect September 1, 2009.

New DWI Bill #3 - HB 1906

friscolaw@gmail.com (Hunter Biederman) — Mon, 13 Apr 2009 08:56:53 -0800

A third new DWI bill proposed by Representative Guillen deals with the DWI surcharge for those convicted of DWI, but completed the DWI/Drug Court program. I have spoken about the DWI/Drug Court program in the past. In Collin County, the only DWI /Drug Court is in Judge Ray Wheless' County Court #4.

This bill would allow the surcharge to be reduced by up to 80%. Right now, anyone convicted of DWI 1st must pay 3,000 to the state over three years. If you are convicted of DWI 2nd, it is 4,500 over 3 years, and if you blow over .16, it is $6,000 over three years.

I think this bill is a great idea, because it gives some incentives for someone to really turn their lives around. The Drug court is usually reserved for those on DWI 2nd, so it is an important time in those offenders' lives.

I do see some problems with this bill, though. It only rewards those "sucessfully completing" the program. Instead, it should reward those entering the program. It is possible to be in the DWI court for 2 years or longer. By then, this bill wouldn't be of much help.

Below is the entire test of the bill:

A BILL TO BE ENTITLED

AN ACT

relating to the amount of a surcharge assessed on conviction of certain intoxicated driver offenses on the driver's license of certain persons who complete a drug court program.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 469, Health and Safety Code, is amended by adding Section 469.010 to read as follows:

(1) successfully completed a drug court program under this chapter; and

(2) has not been arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code, during the 180 days after the date of the program completion.

SECTION 3. This Act takes effect September 1, 2009.

New DWI Bill #2 - HB 591

friscolaw@gmail.com (Hunter Biederman) — Sun, 12 Apr 2009 08:50:42 -0800

The second bill relating to DWI Defense has been proposed by Representative Dutton. I think it is a fantastic idea.

The crux of the bill changes Sec 42.12, which is the community supervision (probation) section of the code. Right now, there are certain crimes that if convicted and placed on probation, you are not allowed early release off. They are mostly major aggravated crimes involving weapons or sex offenses. The worst of the worst. But strangely enough, DWI was added to it. This means if you get 2 years probation, you cannot get off early.

Not being able to get off probation early ties the hands of the judges and the prosecutors for people who have been sucessful on probation. It takes away a lot of discretion for those in the know, that are put in their positions by the people that elect them. This bill would remove the "DWI restriction" and allow somone on DWI probation to be released early. It doesn't make any other changes, such as making it not a final conviction, or removing from their record -- simply letting them get off probation early. Judges/Prosecutors usually only allow this if you have already completed all the terms and condtions of probation (commuity service, DWI classes, etc.).

Below is the entire text of the bill:

A BILL TO BE ENTITLED

AN ACT

relating to the reduction or termination of the period of community supervision imposed on a defendant convicted of certain intoxication offenses.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 20(b), Article 42.12, Code of Criminal Procedure, is amended to read as follows:

(b) This section does not apply to:

(1) a defendant convicted of an offense [~~under Sections 49.04-49.08, Penal Code, a defendant convicted of an offense~~] for which on conviction registration as a sex offender is required under Chapter 62; [,] or

(2) a defendant convicted of a felony described by Section 3g.

SECTION 2. The change in law made by this Act applies to a defendant who is placed on community supervision before, on, or after the effective date of this Act.

SECTION 3. This Act takes effect September 1, 2009.

New DWI Bill #1 - HB 509I

friscolaw@gmail.com (Hunter Biederman) — Sat, 11 Apr 2009 08:45:18 -0800

I noticed that in the past few days, a few new DWI bills have been proposed. I found 5 imparticular that may be of consequence to the DWI defense world.

The first, proposed by Texas Rep Riddle. From what I can see, it related to who can pull blood from a person suspeced of DWI. It amends the transportation code, which already has a list of "approved" people to pull blood. This bill seems to add in an EMT or paramedic. EMT's and paramedics were specifically excluded from those allowed to pull blood from suspects.

Below is the entire proposed text of the bill:

A BILL TO BE ENTITLED

AN ACT

relating to the persons authorized to draw a blood specimen from a vehicle operator to test for alcohol concentration or other intoxicating substances.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 724.017, Transportation Code, is amended to read as follows:

Sec. 724.017. TAKING OF BLOOD SPECIMEN. (a) Only the following [~~a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse~~] may take a blood specimen at the request or order of a peace officer under this chapter:

(1) a physician;

(2) a qualified technician;

(3) a registered professional nurse;

(4) a licensed vocational nurse; or

(5) a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic.

(b) A [~~The~~] blood specimen must be taken according to recognized medical procedures [~~in a sanitary place~~].

[~~(b)~~] The person who takes a [~~the~~] blood specimen under this chapter, or a [~~the~~] hospital where a [~~the~~] blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures. This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

[~~(c) In this section, "qualified technician" does not include emergency medical services personnel.~~]

SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

Everything You need to Know about the New ALR Rules

friscolaw@gmail.com (Hunter Biederman) — Wed, 21 Jan 2009 16:27:49 -0800

I have been getting a lot of questions, regarding the New SOAH rules.

Of the 3 major issues that we thought might happen, none of them did. Hearings are still in person, no subpoena is needed for BTO’s or Tech Super, and they are still required to be there if we request. The new rules can be found here.

The major changes that are presented are in the subpoena arena. If there are other major changes, I haven’t noticed them yet.

In the past, in order to subpoena an officer, we would need to create a subpoena and subpoena request and send it to SOAH for their approval and signature. This often created a delay because they will sign them at their own leisure. Or nit-pick the subpoena, reject it, disallowing enough time to generate a new one that was approved.

Now, attorneys can issue their own subpoenas if they are authorized to practice law in Texas. (Sect. 159.103). We may issue up to two subpoenas for witnesses – the peace officer who was primarily responsible for the defendant’s stop or detention, and the peace officer who was primarily responsible for finding probable cause to arrest the defendant. If the same officer did both, you may only subpoena one.

To issue the subpoenas yourself:

1) Use their form. You can even type it out online and print it.

2) Send in a check for $10 plus mileage over 25 miles to SOAH, along with the return of service at least 3 calendar days before the hearing.

3) Serve the subpoena within FIVE calendar days before the hearing.

4) Serve DPS a copy of the subpoena the same date it is issued.

5) Serve DPS a copy of the subpoena return not later than 3 calendar days before the hearing.

If for some reason the hearing is reset, you must notify them of the new hearing date. In the past, local SOAH has provided that this should be done by cert. mail, return receipt.

PLANO issues:

This one is still a work in progress. We were recently informed by a 3CDLA member that Plano was no longer going to “accept” subpoenas that are not signed by judges. I took this to mean that we could not use the previously negotiated Subpoena Coordinator (If you recall, it took us months to get Plano to agree to do this instead of us hunting down officers.) This is because they have no choice but to “accept” this subpoena. My first response was, “so what,” I’ll just continue to get subpoenas from the judges like we always did.

WRONG: The Dallas SOAH Judge today informed me that she or the other judges will no longer be signing any subpoenas unless they are one of the 3 enumerated by the rules (2+ cops, civilian witnesses, for pro se people). Therefore, doing what we used to do is not going to work.

I have contacted Plano and am told that they will be issuing a new directive on how to handle this. My guess is that they were worried that we were going to start issuing our own subpoenas, dropping them off the night before, and screwing the officers. I let them know that there is already a 5-day time period in the new rules. In fact, I said that a 7 day period was even reasonable for them to request. I will disseminate what ends up happening with this. Of course if Plano does not accept this new form of subpoena through a coordinator, we are going to have to go back to the practice we had 6 months ago or tracking down the officers on duty, off duty, at home, etc. I’m hoping this doesn’t have to go back to that.

So there you go. That’s all you need to know about the new rules (until I hear more about Plano’s subpoena coordinator). Please tip your waitstaff.

1310 The Ticket - Radio Publicity

friscolaw@gmail.com (Hunter Biederman) — Mon, 12 Jan 2009 07:41:26 -0800

Thanks to Robert Guest for pointing out to me that I was mentioned on Dallas/Ft Worth's 1310 the Ticket. They pulled up this blog, and the entry HERE.

Apparently, they show's Gordon Keith was talking about Charles Barkley's recent DUI arrest. They were examining the difference between DUI and DWI.

However, I think the information from my site probably is not what they were looking for. My site lists the difference between DUI and DWI in Texas. What they probably wanted to know is why Charles Barkley's offense was DUI. The answer is simple. Each state calls this crime something different. Acutally, most states refer to the crim of driving while intoxicated / driving under the influcence as DUI. It is the same thing, with slightly different laws from state to state. So, what Barkley was charged with is our equivalent of DWI.

Hope this helps, and if anyone from The Ticket is reading this, let me know if I can ever answer any questions!

Sound the Alarms!

friscolaw@gmail.com (Hunter Biederman) — Mon, 12 Jan 2009 07:30:25 -0800

I had to point out that DWI attorney Ken Gibson made his triumphant return to blogging today after over a year hiatus.

In his post, Ken details the problems with forced blood draw, and examines why the Austin Police cheif cant seem to get the message. Makes you wonder about what the motivation is behind the forced blood draws.

Lawmakers dont need to follow the law

friscolaw@gmail.com (Hunter Biederman) — Mon, 17 Nov 2008 15:59:21 -0800

I was pretty disgusted when I read an article today on chron.com. A while back I posted about Rep. Michael Krusee, who pushed for legislation fining people between $3000-$6,000 for DWI convictions. Of course, part of this is if you give a breath sample above .16, you are liable to the government for $6000.

Well, as do most judges and people in the know when they are arrested for DWI, they refuse the breath test. I knew that someone that who pushed for this legislation would never take the breath test. Not only does the test have tons of problems, but if you score high, you are fined an extra $3,000.

Apparently, today, 'ole Mike got his case dismissed. I can't even begin to tell you how many cases have what would seem to be the same facts as described in the article:

The trooper also reported a "strong smell of alcohol" when Krusee was pulled over and Krusee failed a field sobriety test. He refused a breath and blood test, according to the affidavit. The trooper arrested him and booked him into the Williamson County Jail.

Changes to License Suspension Hearings

friscolaw@gmail.com (Hunter Biederman) — Thu, 30 Oct 2008 18:09:22 -0800

Ok, so I haven't blogged in approximately .. forever. But I am determined to get back in the game.

In playing around online today (alright, you caught me, I was googling my name), I came across the Sunshine Report's new issue of what looks to me like passed resolutions. If someone else out there knows how to interpret this paper better, let me know. My understanding is that the Sunshine Commission makes recommendation to the legislature on what they should do.

If you take a close look, myself and Larry Boyd seem to be the only ones that showed any opposition to the strongarm tactics of the State and DPS. (At least, we are the only ones listed).

If you look close, at the bottom, the Commission "adopted 4.2, and 4.3." 4.2 is requiring affadavits of breath test operators & tech supervisors to be admissible, "unless the judge finds justice requires their presence." This of course, is BS, because the chicken administrative judges will never find it is in the interest of justice. They work for the State too.

4.3 recommends that defense be required "to request breath test operators and breath test
supervisors by subpoena." Oh yeah, dont forget it is these same judges that decide if you get the subpoena or not! Guess who's not getting their subpoenas granted? The citizen accused!

Here is the pdf. of the report. : http://www.sunset.state.tx.us/81streports/dps/issue4.pdf

Substance Abuse Evaluations (SASSI) in DWI cases

friscolaw@gmail.com (Hunter Biederman) — Mon, 14 Jul 2008 09:31:23 -0800

I have always been bothered by one of the ramifications of a DWI conviction: The Substance Abuse Evaluation.

I am all for the premise and theory behind it.

If you are place on probation following a conviction for DWI, you are required by law to take a substance abuse evaluation, and perform any conditions imposed. This can be something as small as "no alcohol while on probation," or larger (very time consuming) things like attending AA several times per week, or going to an intensive inpatient or outpatient program.

The point of requiring counseling for DWI offenders is obvious. I have no problem with that. Also, the premise that a counselor makes the decisions instead of a judge or prosecutor makes sense as well. Us lawyers (or "law talking guys") do not necessarily know what the best treatment plan.

Here is the problem: The offender is usually simply given a short, one page "SASSI - Substance Abuse Subtle Screening Inventory." It is described by the maker as "A one-page paper and pencil test that identifies people who suffer from substance dependence." This simple quiz, magically can tell what a person's substance problems are, and how to fix them. Oh yeah, even according to SASSI information, training required for administration, is checked off "No."

The reason this came up to me, was a client of mine that was placed on probation took this quiz. Then, after about a 10 minute multiple choice quiz, he was ordered by the court to attend an intensive outpatient substance abuse treatment program. This was way more than he bargained for. Oh yeah, he is required to pay for it as well (the SASSI and the treatment program).

I couldn't help but feel that it was unjust that this occurred after his negotiated plea. Not only that, I was troubled by how a one page multiple choice quiz could so vastly affect someones life time wise and monetarily.

When I spoke to the counselor about my client's recommended treatment, I asked him if I could take a look at one of the blank tests. I really just wanted to see it so I could prepare my clients for what they are in for if they are convicted. I was told, that I was not allowed to see one.

Funny thing is, I went online, and found several places to order the SASSI forms from. I have contemplated ordering a some, along with posting the "good answers." I was actually pretty surprised I couldn't find anything about suggested (or not suggested) answers online. Maybe I wasn't looking hard enough.

I'm curious if any other attorneys have run into major problems with the SASSI quiz.

No More Live License Suspension Hearings?

friscolaw@gmail.com (Hunter Biederman) — Fri, 11 Jul 2008 13:14:06 -0800

If DPS gets their way, yes.. all License Suspension Hearing will be by phone. So the Administrative Law Judge will never be able to look you, the lawyers, or the officer in the eyes.

Thanks to Grits for Breakfast for posting on Criminal Justice Agencies Under Review, and discussing the Sunset process, which reviews some of the criminal justice agencies. DPS's report is here.

Although not pointed out yet in Grits' post, of utmost importance in the DWI world, is their review of the ALR, or License Suspension process.

The Sunset review has made very disturbing recommendations:

4.1 - Require hearings to be held by telephone, and allow witnesses to testify by
telephone, unless the judge finds that an in-person hearing or appearance is
necessary for the fair administration of justice.

First of all, this is problematic, because it is nearly impossible to judge the credibility of a witness over the phone. Why do you think in criminal trials, the witnesses must appear live? We all know that in every case, and administrative judge will never find that an "in-person hearing" is necessary. How would they even know in advance of the hearing without knowing any of the facts yet. Adding in that provision is simply a farce that the authors know will never take place -- but an attempt to make it look like a fair rule.

4.2 - Require affidavits of the breath test operators or breath test supervisors to
be admissible without the witness’s appearance unless the judge finds that
justice requires their presence.

Again, how about the right to confront your accuser? And again, how would the judge know, in advance of the hearing, if justice requires their presence? If the judge does know the facts of the case in advance, then obviously there is something very unfair going on. How does one cross examine an affidavit?

4.3 - Require the defense to request breath test operators and breath test
supervisors by subpoena.

Why? Just so the judge can deny the request? The defense is not who initiated these proceedings... it is DPS who is attempting to take away someone's license. Should they have the burden of proof and need to bring the BTO's and technical supervisors? The State knows that it cost a lot money to get a subpoena issued and served, and that is why they came up with this rule. Also, what happens if the judge denies the request for subpoena?

--

The bottom line is, having your license taken away is absolutely devastating to many people. I would bet that 99.9% of people reading this -- heck, making the decisions on this commission, drive every single day. If you are going to take away something so fundamentally important as someone's right to drive, the least you can do is give that person some due process, and let them confront their accusers.

State Does Not Need to Charge How Someone Is Intoxicated in DWI Cases

friscolaw@gmail.com (Hunter Biederman) — Wed, 09 Jul 2008 06:56:31 -0800

In a brand new case out by the Court of Criminal Appeals, the Court has declared that the state does not need to be specific on which theory or theories of intoxication they need to prove.

In order to find someone guilty of DWI, the State must prove that person was intoxicated. Intoxicated means not having the normal use of your mental faculties, not having the normal use of your physical faculties, or having an alcohol concentration of above .08 at the time of driving. (this is my simplified definition -- so attorneys, don't jump on me about it!)

In the past, the state would have to add into the charging document (information for misdemeanors, indictment for felonies), which of those three definitions of intoxication they wanted to prove.

The new case that came out says they no longer need to do this. Therefore, as someone defending themselves on a DWI charge, you will not know how the State plans to prove you were intoxicated until the trial begins. In reality, though, most cases a good attorney will have an idea. Always mental and physical faculties, and only .08 where breath tests are involved. Where it gets tricky is if someone blows under .08, but the state tries to use "retrograde extrapolation," to prove you were higher at the time of driving.

Here is the opinion:

Court of Criminal Appeals of Texas.The STATE of Texas
v.
Stephen Gregory BARBERNELL, Appellee.
No. PD-0867-07.
July 2, 2008.

On State's Petition for Discretionary Review from the Ninth Court of Appeals Montgomery County.
Joseph Salhab, for Stephen Gregory Barbernell.

Marc Brumberger, for The State of Texas.

OPINION

KEASLER, J., delivered the opinion for a unanimous Court.

*1 Stephen Gregory Barbernell was charged with DWI. The court of appeals affirmed the trial judge's decision to grant Barbernell's motion to quash due to the State's failure to allege which definition of “intoxicated” that it intended to prove at trial.^FN1 The court reasoned that intoxication is an act or omission and that the definitions of “intoxicated” provide for different means of commission.^FN2 Because we hold that the definitions of “intoxicated” do not describe an act or omission, we reverse and vacate the judgment of the court of appeals and remand this case to the trial court.

FN1. Barbernell v. State, 221 S.W.3d 914, 917-18 (Tex.App.-Beaumont 2007).

FN2. Id. at 917.

I. Procedural History

Barbernell was charged by information with the misdemeanor offense of driving while intoxicated under Texas Penal Code, Section 49.04.Section 49.04 defines the offense of DWI and reads, in part, as follows: “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” ^FN3 Section 49.01(2), Texas Penal Code, sets out two definitions of “intoxicated.” ^FN4

FN3. TEX. PENAL CODE ANN. § 49.04 (Vernon 2003).

FN4. TEX. PENAL CODE ANN. § 49.01(2)(A)-(B) (Vernon 2003).

“Intoxicated” means:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.^FN5

FN5. Id.

The information charging Barbernell alleged: “on or about April 30, 2005, in Montgomery County, Texas, Stephen Gregory Barbernell ..., while operating a motor vehicle in a public place, was then and there intoxicated[.]”

Barbernell moved to quash the information because the State failed to allege the definition of “intoxicated” set out in Section 49.01(2) that it intended to prove at trial. In support of his motion, Barbernell relied on our 1991 decision in Carter v. State,^FN6 which held that the State must allege which definition of intoxicated-“loss of faculties” or “per se” intoxication (i.e., alcohol concentration) ^FN7-that the State intends to prove at trial.^FN8 Barbernell claimed that the information failed to provide him with adequate notice of the manner and means (i.e., the definition of “intoxicated” that the State intended to prove) in which he committed the offense. In response, the State argued that our 2004 opinion in Gray v. State^FN9 establishes that the definitions of “intoxicated” are not elements of DWI. After a brief hearing, the trial judge granted Barbernell's motion to quash. The State then timely filed a notice of appeal.^FN10

FN6. 810 S.W.2d 197 (Tex.Crim.App.1991).

FN7. TEX. PENAL CODE ANN. § 49.01(2) (previously codified at TEX. REV. CIVIL STAT. art. 6701 l-(a)(2)).

FN8. Id.

FN9. 152 S.W.3d 125 (Tex.Crim.App.2004).

FN10. See TEX.CODE CRIM. PROC. art. 44.01(a)(1) (Vernon Supp.2005).

II. Court of Appeals

In the Beaumont Court of Appeals, the State argued that the judge erred in granting Barbernell's motion to quash.^FN11 In doing so, the State reasserted its reliance on our decision in Gray, while Barbernell continued to rely on Carter.^FN12 Finding that Gray did not address Carter's holding, the court of appeals, after reviewing our analysis of the elements of DWI in Gray, held that the element of “intoxicated” is an act or omission and that the definitions of “intoxicated” provide different manner or means to commit intoxication.^FN13 Due to the State's failure to allege the definition of “intoxicated” that it intended to prove at trial, the court held that the information did not sufficiently notify Barbernell of the charged offense.^FN14 As a result, the court affirmed the trial judge's decision to grant Barbernell's motion to quash.^FN15

FN11. Barbernell, 221 S.W.3d at 916.

FN12. Id.

FN13. Id. at 917.

FN14. Id.

FN15. Id. at 917-18.

*2 In a concurring opinion, Justice Horton noted that Carter is controlling authority.^FN16 However, Justice Horton stated that he believed that the State was correct in asserting that the definitions of “intoxicated” are evidentiary matters, as opposed to manner and means of commission, and therefore do not need to be alleged in the charging instrument.^FN17

FN16. 221 S.W.3d at 918 (Horton, J., concurring).

FN17. Id.

We granted the State's petition for discretionary review to address the following issue: “Whether the manner of intoxication, either ‘loss of faculties' or ‘alcohol concentration,’ is an element of the offense of driving while intoxicated which must be alleged in the charging instrument[.]”

Before we address this particular issue, we provide a general overview of the law concerning notice and our most recent cases addressing notice in relation to the offense of DWI. And because the State's ground for review comes to us in light of our decision in Gray, we will also examine Gray'sdiscussion of the DWI statute.

III. Law

A. Notice

The Texas and United States Constitutions grant a criminal defendant the right to fair notice of the specific charged offense.^FN18 “The charging instrument must convey sufficient notice to allow the accused to prepare a defense.” ^FN19 Toward that end, Chapter 21 of the Texas Code of Criminal Procedure governs charging instruments and provides legislative guidance concerning the requirements and adequacy of notice.^FN20 With respect to informations, Article 21.21 sets out what facts must be included in an information and states, in part, “[t]hat the offense [must] be set forth in plain and intelligible words[.]” ^FN21 Additionally, an information must include everything that is necessary to be proved.^FN22 An information is sufficient if it

FN18. Lawrence v. State, 240 S.W.3d 912, 916 (Tex.Crim.App.2007) (citing U.S. CONST. amend. VI; TEX. CONST. art. I, § 10;Ferguson v. State, 622 S.W.2d 846, 849 (Tex.Crim.App.1981) (opinion on reh'g)); TEX. CONST. art. V, § 12(b); see also Cole v. Arkansas, 333 U.S. 196, 201 (1948).

FN19. Curry v. State, 30 S.W.3d 394, 398 (Tex.Crim.App.2000) (citing State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998)).

FN20. Moff v. State, 154 S.W.3d 599, 601 (Tex.Crim.App.2004); Ferguson, 622 S.W.2d at 849-50.

FN21. TEX.CODE CRIM. PROC. ANN. art. 21.21(7).

FN22. TEX.CODE CRIM. PROC. ANN. art. 21.03; TEX.CODE CRIM. PROC. ANN. art. 21.23.

charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment[.] ^FN23

FN23. TEX.CODE CRIM. PROC. ANN. art. 21.11; TEX.CODE CRIM. PROC. ANN. art. 21.23.

We have recognized that in most cases a charging instrument that tracks the statutory text of an offense is sufficient to provide a defendant with adequate notice.^FN24 When a statutory term or element is defined by statute, the charging instrument does not need to allege the definition of the term or element.^FN25 Typically the definitions of terms and elements are regarded as evidentiary matters.^FN26 But in some cases, a charging instrument that tracks the statutory language may be insufficient to provide a defendant with adequate notice.^FN27 This is so when the statutory language fails to be completely descriptive.^FN28 The statutory language is not completely descriptive “when the statutes define a term in such a way as to create several means of committing an offense, and the definition specifically concerns an act or omission on the part of the defendant.” ^FN29 In such cases, “more particularity is required to provide notice.” ^FN30 Thus, “if the prohibited conduct is statutorily defined to include more than one manner or means of commission, the State must, upon timely request, allege the particular manner or means it seeks to establish.” ^FN31

FN24. Lawrence, 240 S.W.3d at 916 (citing State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998)); Curry, 30 S.W.3d at 398 (citingOlurebi v. State, 870 S.W.2d 58, 62 (Tex.Crim.App.1994)); Phillips v. State, 597 S.W.2d 929, 934 (Tex.Crim.App.1980) (citing Parr v. State, 575 S.W.2d 522, 526 (Tex.Crim.App.1978); Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978)).

FN25. Geter v. State, 779 S.W.2d 403, 405 (Tex.Crim.App.1989) (citing Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981);May v. State, 618 S.W.2d 333, 341 (Tex.Crim . App.1981)).

FN26. Marrs v. State, 647 S.W.2d 286, 289 (Tex.Crim.App.1983) (citing Thomas, 621 S.W.2d at 162); see also Curry, 30 S.W.3d at 398.

FN27. Curry, 30 S.W.3d at 398.

FN28. Id.

FN29. Solis v. State, 787 S.W.2d 388, 390 (Tex.Crim.App.1990); Geter, 779 S.W.2d at 405 (citing Ferguson, 622 S.W.2d at 851).

FN30. Id.

FN31. Saathoff v. State, 891 S.W.2d 264, 266 (Tex.Crim.App.1994) (citing Ferguson, 622 S.W.2d at 851).

*3 On appeal, because the sufficiency of a charging instrument presents a question of law, an appellate court reviews a trial judge's decision to quash a charging instrument for failure to provide adequate notice de novo.^FN32

FN32. Moff, 154 S.W.3d at 601.

B. Notice and DWI

Garcia and Carter are our two most recent cases addressing the issue of adequate notice under the DWI statute. In our 1988 decision in Garcia,we held that when a defendant is charged with DWI, in order to provide adequate notice, the State must allege the specific type of intoxicant(s) that the defendant allegedly used to become intoxicated.^FN33 In charging Garcia with DWI, the State alleged that Garcia “ ‘did then and there drive and operate a motor vehicle in a public place ... while intoxicated, when [he] did not have the normal use of his mental and physical faculties.’ “ ^FN34

FN33. 747 S.W.2d at 381.

FN34. Id. at 380.

In deciding that the specific type of intoxicant must be included in the charging instrument, we reasoned that the prohibited conduct of becoming intoxicated depends on an act or omission of the defendant and that such conduct, under the first definition for “intoxication,” “can be accomplished in several different ways.” ^FN35 Continuing, we said that the type of intoxicant “becomes an element of the offense and critically necessary to the State's proof .” ^FN36 Concluding, we held that, because the State failed to allege the type of intoxicant, the charging instrument did not provide Garcia with adequate notice.^FN37

FN35. Id. at 381.

FN36. Id.

FN37. Id.

Approximately three years later, examining the same statute in Carter, we built on Garcia's holding and stated that, in addition to alleging the specific type of intoxicant, the State must also allege the definition of “intoxicated” that it intends to prove at trial to provide adequate notice. ^FN38 In making this determination, we concluded that the definitions of “intoxicated” describe two types of DWI offenses, a “loss of faculties” offense and a “per se offense.” ^FN39 The “loss of faculties” offense, we said,

FN38. 810 S.W.2d at 200.

FN39. Id.

may be established by proving the defendant drove or operated a motor vehicle in a public place while not having the normal use of his mental faculties, or while not having the normal use of his physical faculties, because of the introduction into his body of (1) alcohol; (2) a controlled substance; (3) a drug; or (4) a combination of two or more of those substances.^FN40

FN40. Id.

In contrast, we said that the “per se” offense “may be established by proving the defendant drove or operated a motor vehicle in a public place while having an alcohol concentration of 0 .10 or more in his blood, breath, or urine.” ^FN41

FN41. Id.

Finally, recognizing Garcia and another case discussing notice, we then said that “given the fundamentally different natures” of the two offenses “and the different behaviors necessary to commit the two offenses,” the State must allege the definition(s) of “intoxicated” that it intends to prove at trial. ^FN42 We then held that the information, which did not specify the type of intoxicant Carter allegedly used or the definition of “intoxicated” that the State would rely on at trial, did not provide Carter with adequate notice so he could prepare his defense.^FN43

FN42. Id. (citing Garcia, 747 S.W.2d at 381; Solis, 787 S.W.2d at 391).

FN43. Id.

C. Gray v. State

*4 In Gray, in 2004, we repudiated our statement in Garcia that the specific type of intoxicant is an element of DWI. In that case, the State charged Gray with DWI, and the information alleged, in part, that Gray did not have the normal use of his mental and physical faculties due to the introduction of alcohol.^FN44 At trial, evidence was admitted establishing that Gray was taking several anti-depressant medications at the time of the offense.^FN45 A chemist testifying on behalf of the State stated that alcohol and anti-depressant drugs have the same depressant effect on the central nervous system and that when the two are used in combination with one another, it can result in what has been described as a “synergistic effect.”^FN46 According to the chemist, the two medications can interact inappropriately: when used together either one may “accelerate the action of one medication.” ^FN47

FN44. 152 S.W.3d at 126.

FN45. Id.

FN46. Id.

FN47. Id. at 127.

The trial judge's proposed charge instructed the jury that if the defendant indulges in the use of the anti-depressant medications and “thereby makes himself more susceptible to the influence of alcohol than he otherwise would have been, and by reason thereof becomes intoxicated from recent use of alcohol, he would be in the same position as though his intoxication was produced by the alcohol alone.” ^FN48 The judge's proposed application paragraph also instructed the jury to convict if it found that Gray was driving while intoxicated by reason of the introduction of alcohol into his body, either alone or in combination with anti-depressant medications.^FN49 Gray objected to the charge, arguing that it improperly expanded the scope of the of the State's allegation in the information because, under our decision in Garcia, the specific type of intoxicant alleged to have been used by the defendant is an element of the offense of DWI.^FN50 The trial judge overruled the objection, and Gray was subsequently found guilty and sentenced. ^FN51

FN48. Id.

FN49. Id.

FN50. Gray, 152 S.W.3d at 131.

FN51. Id. at 127.

Gray appealed, arguing that the jury charge, which instructed the jury on the “synergistic effect,” was not part of the law applicable to the case.^FN52 The First Court of Appeals in Houston disagreed and affirmed the judgment of the trial court.^FN53 We granted review to decide whether the court of appeals “erred in holding that the instruction constituted the law applicable to the case when Gray was not charged with intoxication by a combination of drugs and alcohol.” ^FN54

FN52. Id.

FN53. Id.

FN54. Id.

We began by examining the DWI statute and, in particular, Garcia's statement that the type of intoxicant is an element of DWI.^FN55 We observed that this statement was dicta because the issue in Garcia involved pleading notice requirements and was therefore unnecessary to the resolution of the case.^FN56 We then noted three “problems with the statement.” ^FN57

FN55. Id. at 131.

FN56. Id. at 132.

FN57. Id.

“First, it contradicts the statutory definitions of what constitutes an element of the offense.” ^FN58 Section 1.07 defines the elements of the offense as “the forbidden conduct, the required culpability, the required result, and the negation of any exception to the offense.” ^FN59 The type of intoxicant does not constitute any of these, and “[t]he mere fact that the DWI statute separately defines intoxication does not automatically elevate the intoxicant to the status of an element of the offense.” ^FN60 Second, the statement conflicts with our caselaw; specifically, Ex parte Luna,^FN61 which addressed the essential elements of the theft statute.^FN62 There, we held that the definitions of “unlawfully” are not elements of the offense of theft but are evidentiary matters that do not need to be alleged in the charging instrument.^FN63 Comparing Ex parte Luna, we said that even though the DWI statute defines “intoxicated,” this fact does not mean that the types of intoxicants are elements of DWI.^FN64 Third, it would be bad public policy to hold that the specific type of intoxicant is an element of DWI because a defendant could obtain an acquittal if the State, at trial, ultimately proves that the defendant used another type of intoxicant than the one alleged in the charging instrument.^FN65 The DWI statute, we observed, does not focus on the act of becoming intoxicated; it focuses on the act of the defendant while intoxicated.^FN66 Based on these considerations, we held that the type of intoxicant used by the defendant is not an element of DWI and “disavow[ed] the dicta in Garcia to the contrary.” ^FN67

FN58. Id.

FN59. Id. (citing TEX. PENAL CODE ANN. § 1.07(a)(22)).

FN60. Id.

FN61. 784 S.W.2d 369 (Tex.Crim.App.1990).

FN62. Gray, 152 S.W.3d at 132.

FN63. Ex parte Luna, 784 S.W.2d at 371.

FN64. Gray, 152 S.W.3d at 132.

FN65. Id.

FN66. Id.

FN67. Id.

*5 Examining the jury charge in Gray's case, we held that the “synergistic effect” instructions in the charge did not expand on the allegation in the information and therefore properly applied the law to the facts of the case. ^FN68 We reasoned that the instructions “permitted the jury to convict if Gray's drug made him more susceptible to alcohol, but it still required intoxication due to alcohol.” ^FN69

FN68. Id. at 133.

FN69. Id.

IV. Analysis

Reiterating the arguments it made before the trial judge and the court of appeals, the State contends that by explicitly disavowing Garcia'sreasoning in Gray, we necessarily undermined Carter's holding that the State is required to allege the definition of “intoxicated” that it intends to rely on at trial. The State asserts that a person's state of intoxication is not an act or omission; instead, it is the defendant's condition and a circumstance that accompanies the defendant's act of operating a motor vehicle. In response, Barbernell argues that our decision in Carter is sound and has not been undermined by Gray. Citing Carter as controlling precedent, Barbernell asserts that the court of appeals was correct in affirming the trial judge's ruling.

At the outset, we must make clear that our discussion about the elements of DWI in Gray had no impact on Garcia's holding concerning the adequacy of notice. We expressly made this point at the end of our opinion in Gray when responding to the State's request that we overrule Garcia'snotice holding: “Reaching out to address the validity of Garcia's notice holding would be dicta. And we have rejected this argument before. We decline to consider it today.” ^FN70 Consequently, contrary to the State's argument, Gray's discussion of the elements of DWI and renunciation ofGarcia's statement that the type of intoxicant is an additional element of the offense, while authoritative with respect to the elements of DWI, does not directly control the pleading notice issue before us.

FN70. 152 S.W.3d at 134 (majority opinion), 136 (Cochran, J., dissenting).

In analyzing whether a charging instrument provides adequate notice, our notice jurisprudence makes clear that courts must engage in a two-step analysis. First, a court must identify the elements of an offense. As recognized in Gray, the elements, defined by the Legislature, include: the forbidden conduct, the required culpability, if any, any required result, and the negation of any exception to the offense.^FN71 Next, as to the second inquiry, when the Legislature has defined an element of the offense that describes an act or omission, a court must ask whether the definitions provide alternative manners or means in which the act or omission can be committed. If this second inquiry is answered in the affirmative, a charging instrument will supply adequate notice only if, in addition to setting out the elements of an offense, it also alleges the specific manner and means of commission that the State intends to rely on at trial. With these principles in mind, we find that it is necessary to revisit our analysis inCarter.

FN71. TEX. PENAL CODE ANN. § 1.07(22).

*6 A careful review of our decision in Carter reveals that the Court's analysis was incorrect. First, although the Court, consistent with Gray, began by citing the elements of DWI as those set out in Article 6701 l-1(b) of the Texas Revised Civil Statutes, now codified in Section 49.04(a), Texas Penal Code, the Court ultimately held that by virtue of the definitions of the element “intoxicated,” that there two separate DWI offenses-“loss of faculties” and “per se.” The Court reached this conclusion based on its determination that the definitions of “intoxicated” permit the offense of DWI to be proven in two ways. Our reevaluation of this analysis exposes a serious defect in the Court's reasoning: After identifying the elements of DWI, the Court neglected to ask whether the definitions of “intoxicated” concern an act or omission so as to create more than one manner and means of committing an offense. Instead, without explanation, the Court decided that the two definitions of “intoxicated” each constitute separate acts or forbidden conduct. In doing so, the Court failed to reconcile this conclusion with its previous statement that the definitions of “intoxicated” involve only matters of proof. Then, expanding on its faulty determination, the Carter Court held that, because the two types of forbidden conduct involve “fundamentally different natures” and “different behaviors,” a charging instrument must allege the definition of “intoxicated” that the State will seek to prove at trial.

The shortcomings of Carter's constitutional analysis have not gone unnoticed by legal scholars. Criminal law experts Professors Dix and Dawson have criticized this opinion, stating that the Court “took considerable liberties with the concept of ‘behavior’ or conduct constituting an offense.” ^FN72In their view,

FN72. DIX & DAWSON, 41 TEXAS PRACTICE AND PROCEDURE § 20.314 (2nd ed.2001).

[t]he State's choice between the methods of proving intoxication does not in any sense determine what acts, conduct or ‘behavior’ of the accused that the State will rely on. Rather, the choice concerns the type of evidence the State will rely upon to show particular conduct by the accused-‘driving’ or ‘operating’ a vehicle-performed while a particular circumstance-intoxication-existed.^FN73

FN73. Id.

Having determined that Carter's holding evolved from a flawed analysis, we now reevaluate the notice issue according to the dictates of our precedent. With the understanding that “intoxicated” is an element of DWI ^FN74 and that Section 49.01(2) sets out two definitions for “intoxicated,” we ask whether the definitions of “intoxicated” concern an act or omission and create two different manners and means of committing DWI. Our recent examination of the definitions of “intoxicated” in Bagheri v. State^FN75 leads us to conclude that the answer to this question is “no.” Echoing the sentiments of Professors Dix and Dawson, in Bagheri, we held that the definitions “set forth alternative means by which the State may proveintoxication, rather than alternate means of committing the offense.” ^FN76 We then explained, “The conduct proscribed by the Penal Code is the act of driving while in a state of intoxication. That does not change whether the State uses the per se definition or the impairment definition to prove the offense.” ^FN77 These statements make clear that the definitions of “intoxicated” are purely evidentiary matters; therefore, they do not need to be alleged in a charging instrument to provide a defendant with sufficient notice. As a result, we overrule Carter's holding that the State must allege the definition of “intoxicated” that it intends to rely on at trial in the charging instrument to provide adequate notice. A charging instrument that pleads the offense of DWI provides adequate notice when it sets out the elements of the offense as provided in Section 49.04.

FN74. Gray, 152 S.W.3d at 131.

FN75. 119 S.W.3d 755 (Tex.Crim.App.2003)

FN76. Id. at 762 (emphasis in original).

FN77. Id.

*7 Thus, in this case, the information, though it did not allege either definition of “intoxicated,” provided Barbernell with adequate notice, and the court of appeals erred to conclude otherwise.

V. Conclusion

After reevaluating our analysis in Carter, we hold that the definitions of “intoxicated” in Section 49.01(2) are evidentiary and therefore do not need to be alleged in a charging instrument. Therefore, a trial court should not quash a DWI information charging a defendant with DWI due to the State's failure to allege the definition of “intoxicated” that it intends to prove at trial. The judgment of the court of appeals is reversed and vacated, and the cause is remanded to the trial court.

Tex.Crim.App.,2008.
State v. Barbernell
--- S.W.3d ----, 2008 WL 2596934 (Tex.Crim.App.)