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Texas Drugged Driving

In Texas, a person commits a DUI if the person is intoxicated while operating a motor vehicle in a public place. Texas Penal Code Ann. § 49.04 (Vernon 2009).

Affirmative Defense

The fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense. Id. § 49.10.

Implied Consent

  • If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place 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. Texas Transp. Code Ann. § 724.011(a) (Vernon 2009).
  • A specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer. Id. § 724.013.
  • A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial. Id. § 724.061.
  • Defendant arrested for DUI is not entitled to consult an attorney before deciding whether to take a test. Texas courts have ruled that since test is not 'testimony,' it isn't protected. De Mangin v. State, 700 S.W.2d 329 (1985).
  • Officer is not required to allow defendant to choose which type of specimen he wanted to provide. Coggins v. State, 160 S.W.3d 177 (2005).
  • Implied consent statutes did not do not shield a defendant from blood draws pursuant to validly issued warrant. Dye v. State ,WL 361289 (2003).

Penalties

  • First offense Class B Misdemeanor - fine of up to $2,000; jail for 72 hours and up to 180 days; community service for 24 hours up to 100 hours; license suspension of up to one year; surcharge of $1,000 or $2,000 per year for three years. Id. § 49.04.
  • Second offense Class A Misdemeanor - fine of up to $4,000; jail for 72 hours to 365 days; community service for 80 hours to 200 hours; license suspension for 180 days to two years; surcharge of $1,500 or $2,000 per year for three years.
  • Third and subsequent offense Third Degree Felony - fine of up to $10,000; jail for two to ten years; community service for 160 hours to 600 hours; license suspension for 180 days to two years; surcharge of $1,500 or $2,000 per year for three years.

Other Penalties & Penalty Enhancer

  • If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days. Id. § 49.04.
  • DUI while vehicle is occupied by a passenger who is younger than 15 years of age is a felony. Id. § 49.045.

Sobriety Checkpoints

Texas has found sobriety checkpoints to be illegal under Texas interpretation of federal Constitution.

  • The checkpoint upheld by the U.S. Supreme Court in Michigan v. Sitz, was authorized by legislation. In light of the fact that no such legislative authority grants Texas law enforcement the right to conduct checkpoints, checkpoints are illegal under the U.S. Constitution. State v. Holt, 887 S.W. 2d 16 (1994).

Case Law

Smithhart v. State, 503 S.W.2d 283 (1973) -- Where evidence was insufficient to show that drug taken by defendant affected him to degree which would render him incapable of safely driving vehicle, conviction of defendant for operating motor vehicle while under influence of drugs could not be obtained on basis that valium taken by defendant may have had unusually severe effect on him because he had also been drinking vodka.

Lewis v. State, 708 S.W.2d 561 (1986) -- Testimony that defendant had used marijuana and alcohol and was he was operating erratically supported DUI conviction, despite no chemical evidence.

Dickerson v. State, WL 475800 (2006) -- Evidence of erratic driving and non-cooperative attitude, the fact that defendant admitted to drinking, and the fact that the defendant failed field sobriety tests were factually sufficient to convict for DUI.






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