dui by w. clay abbott dwi resource prosecutor texas district and county attorneys association

DUIDUIBy

W. Clay AbbottDWI Resource Prosecutor

Texas District and County Attorneys Association

Who Cares?Who Cares?

• Leading Cause of Death 16-21

• In 2006 in Texas 1677 alcohol related fatalities

• 48% of all traffic fatalities in Texas alcohol related

• 457 16-20 year olds

• 26.52 of every 100,000 in that group

Minor v. Child?Minor v. Child?

• Statutes have not defined the term “juvenile.”

• 106.01 ABC: defines “minor” to mean a person under age 21.

• FC: a minor who is a least age 10 and under age 17 is also a “child.”

Procedures Based on Age in Procedures Based on Age in DUIDUI

• No offense if 21 on offense date

• 17-21 treat offender as an adult

• 10-16 treat offender as child

• 9 or under…..– Charge the parents

Status OffendersStatus Offenders

• Section 51.02(15) defines “status offender” as “a child who is accused, adjudicated, or convicted for conduct that would not, under State law, be a crime if committed by an adult.”

• The statute lists crimes that are status offenses.

Issue of Status OffendersIssue of Status Offenders

• Not Fair

• Documentable Decrease in Deaths

• Riskiest Drivers

• Riskiest Drinkers

• Generally same scheme as Minor in Possession

• Gateway

Trial IssuesTrial Issues

• Under Charging• Citation v. Arrest• Detectable Amount

– Minor in Possession– Portable Breath Test– Smell– SFSTs and Observations

• Operating– Minor in Consumption

Driving Under the InfluenceDriving Under the InfluenceAlcoholic Beverage Code Section 106.041Alcoholic Beverage Code Section 106.041

• A minor

• Operates

• A motor vehicle

• In a public place

• Having ANY detectable amount of alcohol in the minor’s system

Driving While IntoxicatedDriving While Intoxicated

• Operate

• A motor vehicle

• In a public place

• While Intoxicated– .08 BAC– Loss of Normal Use

Section 49.04, Penal Code

Penalty DUIPenalty DUI

• 1st Offense – $1 - $500 Fine

– Alcohol Awareness Course

– Mandatory Community Service of 20-40 hours related to education about or prevention of misuse of alcohol

– Automatic 60 day driver’s license suspension (Court does not order)

• 2nd Offense– $1 - $500 Fine

– Discretionary Alcohol Awareness Course

– Mandatory Community Service of 40 to 60 hours

– Automatic Driver’s License Suspension of 120 days (Court does not order)

What is a PriorWhat is a Prior

• Alcoholic Beverage Code 106.071 (f)

• Adjudication in Juvenile Court

• Prior Deferred Disposition under 45.051

• As Child or Adult

• Conviction and Fine

• Proving Priors is Required– Do you have written judgments?

Waiver of JurisdictionWaiver of Jurisdiction

• Procedure

– What to include?

– Where to send the information?

– Response of Juvenile Court?

Penalty - 3rd OffensePenalty - 3rd Offense

– Penalty• Up to 180 Days • $500-2000 Fine• 40-60 Hours of CS

– Age 17 or Older • Filed in County Court• No Deferred Adjudication

– Under 17• Filed in Juvenile Court

Magistrate Warnings to Magistrate Warnings to JuvenilesJuveniles

• Section 51.095 of the Family Code

• Applies only to Custodial Interrogation–What about electronic recordings?–Determination of voluntariness

Juvenile’s AppearanceJuvenile’s Appearance

• Article 45.0215, Code of Criminal Procedure: Open Court

• Determine sophistication and maturity of juvenile.• Article 45.057, Code of Criminal Procedure:

Notification of Change of Address• Parent’s Appearance• ALL pleas on DUI must be in open court before a

judge– Alcoholic Beverage Code 106.10

Failure to AppearFailure to Appear

• Of the juvenile:– Jailing juveniles?– Unadjudicated children, now adults– Requirements before 17th birthday

• Of the parent– Article 45.202 Code of Criminal Procedure– Waiver of presence?

SentencingSentencing

• Community Service must be related to education about or prevention of alcohol abuse– If no programs are available in court’s

jurisdiction– Court orders CS it considers appropriate

to rehabilitation

• Other general 45.051 conditions may be ordered