Bexar County DWI Updates
No Refusal Weekends
In Bexar County "no refusal" weekends are becoming more common, meaning that the officers will obtain search warrants for blood draws of the arrestees when they refuse a breath test and a blood test. Additionally, the police in Bexar County now have a bus which contains an intoxilyzer with equipment and personnel for blood testing which can be driven to the scene of the arrest or accident. Nevertheless, blood and breath testing must be voluntary on the part of the arrestee. If an individual's "consent" to a blood or breath test is obtained by reason of threats of violence by the officer (such as threats of strapping him to a chair or tazing him}, or if he is threatened by the officer with an involuntary blood draw by virtue of a search warrant, the consent is not voluntary. It may be challenged under the Erdman decision.
New In-home Breath Alcohol Monitoring
In home breath alcohol monitoring devices may be used in lieu of an ignition interlock. However, in cases of DWI second offense and felony DWI, courts in Bexar County require that the defendant file an affidavit that he/she does not own or drive a vehicle. In some courts the judges will allow a substitution of this device for an ignition interlock. It is about the same cost, but it requires a dedicated phone line.
In DWI second offenses and felony cases it is a statutory condition of bail that the individual have an ignition interlock (the blow to start device) on his car while the case is pending. For many persons this device is not only inconvenient, but it also may create problems for those who use a car in their employment. Many employers consider this device a hazard and an invitation to liability should the employee be involved in any accident. Most insurance carriers for businesses will not insure an employee who has this device in the company car or a car used in the course of business for the company it insures. Therefore, some ignition interlock companies such as SmartStart have introduced a new device known as the In-Home SmartStart. The in home device has a camera which takes a picture of the individual as he blows into it. The person who has this in home device must blow into it three times per day. It costs approximately $60 per month. Please contact your purveyor of the device for terms and conditions.
Administrative License Hearings:
The procedural rules of the hearings change by reason of case law or adoption of new standards by the agency. A recent and important change now requires the
defendant to subpoena the breath testing officer if you wish to examine him on the issues concerning the breath test in the case. The defendant may no longer rely upon the Department to bring this witness in to the hearing when the BTO is also the arresting officer.
Take Responsibility Plea:
For the first time in Bexar County the District Attorney's office is allowing its misdemeanor prosecutors to plea bargain. However, the "plea bargain" is very limited, and it is called the "take responsibility plea." To accept the plea bargain you must plead within 60 days of your arrest to the offense of "obstruction of a highway with intoxication." There is no such offense in the penal code. Nevertheless, you must waive any and all rights concerning your case, including the right to challenge that offense. You must agree to the admission of all the evidence in your DWI case in any subsequent trial should you be arrested again. As your punishment you must perform all the conditions of a DWI probation with no early termination, and you must have an ignition interlock device in your car for half the term of the probation. Defendants who had an accident, no matter how slight, during the original DWI will not be allowed to participate in this plea offer. Defendants who are not cooperative with the police or who are disrespectful, resistant or rude will not be allowed to participate. As a result of the plea bargain, the defendant will not be convicted of DWI, and he will not face an administrative financial penalty in order to keep his license with the Department of Public Safety. Expunction of the arrest for DWI and conviction for obstruction of a highway will
NOT be allowed.
Pre-trial Procedures:
Pursuant to the
Ford case the courts in Bexar County no longer require the State to bring the officer(s) in to the hearing. If the officer is not present, the judge will allow the prosecutor to introduce the police report in support of its probable cause. Therefore, similar to the ALR hearing, it is incumbent upon the defense to subpoena the officer(s) to the motion to suppress hearing if he wishes to have a meaningful review of the facts surrounding the arrest. Additionally, there appears to be no reason why the defense may not bring its own counterveiling affidavits into the hearing.
Expunctions:
The law concerning expunctions has been interpreted by the Supreme Court to require that, even in misdemeanor cases, the individual must wait for the 2 year statute of limitations to pass before he may petition for an expunction. The Legislature attempted to amend the statute to allow a defendant to seek expunction right away in a misdemeanor case. The language was agreed upon by legislators after full review by the defense and prosecutor bars. Nevertheless, Governor Rick Perry inexplicably vetoed this legislation at the last minute. Therefore, the unjustly accused must now wait two years for justice to be granted in his misdemeanor case.
Trial:
For the first time in decades of practice in Bexar County, the District Attorney has, for a time, agreed to waive juries in DWI and other cases. Thus, a defendant may waive a jury in a DWI case and try his case to the judge. Without jury selection, it will take far less time to try a case. In some cases this waiver may be beneficial tactic for the defense, but it is not a simple matter. There should be an articulable reason for waiving a jury which will benefit the defendant.
Impact Courts:
Additionally, County Courts at law 14 and 15 were created by the last legislature, and new judges appointed to man the courts. However, there are no courtrooms as yet constructed for the judges. On a monthly basis, these two judges alternatively preside over an "Impact Court" which hears old cases from other existing courts with the express purpose of disposing of the cases by either trial or other final ruling. Continuances will not be granted to the defense or to the State, and it will be a rare case which is returned to the sending court. There is considerable pressure on the parties to resolve these cases. Therefore, plea offers by the prosecution are often generous.