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DWI Enhancement

DWI Enhancement Savings Claus Effective September 1, 2005, the state repealed the "10 year rule" in Texas Penal Code 49.09(e). However, there is a savings clause that says the following: "The changes in law made by this Act apply only to the penalty or the terms of community supervision for an offense under Chapter 49, Penal Code, that is committed on or after the effective date of this Act. The penalty and the terms of community supervision for an offense under Chapter 49, Penal Code, that was committed before the effective date of this Act are covered by the law in effect...

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Automatism and Involuntary Intoxication

While the concepts of Automatism and Involuntary Intoxication may sound similar, they are different in many ways. One focuses mainly on the act itself, while the other focuses more on knowledge of the act. Automatism Automatism is related to, but different from, the insanity defense. While insanity deals with whether a person does or does not know his action is wrong, Automatism deals with whether the person was conscious of the act at all. The Court in Mendenhall v. State, 77 S.W.3d 815 (Tex.Crim.App. 2002) defined Automatism (citing a legal treatise) as: "[O]ne who engages in what would otherwise be criminal conduct is...

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DWI Manslaughter Oddities

DWI Manslaughter is in a strange gray area of the law. Is it a DWI? Or, is it closer to a murder or manslaughter? In many ways, DWI Manslaughter is just a DWI involving death. DWI Manslaughter and the Statute of Limitations However, for the statute of limitations, which is how long the State has to bring charges, DWI Manslaughter is closer to murder. For context, the statute of limitations for misdemeanors (including first- and second-time DWIs), is 2 years. Meanwhile, felonies have varying lengths depending on the type of crime, but the general statute of limitations for felonies is 3 years....

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Holiday DWI

Any holiday, no matter how major or minor, is a risky time to be on the road. Police tend to be out in full force for Holiday DWI arrests. In fact, many holidays in Texas are called "no refusal weekends" to try and scare drivers. However, "no refusal weekends" are a lie. You always have the right to refuse and force the police to get a warrant to draw blood. This is the same thing that happens every day of the year, not just on holidays. That said, holidays tend to be the time when police are actively searching to pile...

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ALR Notice Update

Recently, the State Office of Administrative Hearings (SOAH) has moved to using eFile for ALRs. Before then, everything was handled by fax. This move to eFile has caused some issues for both DPS and ALR Lawyers. Recently, Amended Notices of Hearing are being sent to our clients rather than to our office. The Amended Notice of Hearing is the letter that provides the ALR second setting after the first setting is "5 day'd" (meaning we use our 5 day continuance that we are entitled to request). While our office receives the new dates through an eFiled order, the letters still...

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Golf Cart DWI

Occasionally, police make DWI arrests for people driving a golf cart. However, whether a golf cart satisfies the requirements for a DWI is a strange question. DWI requires 1) operating, 2) a motor vehicle, 3) in a public place. Driving a golf cart would count as operation. However, is a golf cart a "motor vehicle" for purposes of a DWI? Also, what is a "public place" in relation to golf carts? What is a 'Public Place'? Unfortunately, the "public place" requirement is a somewhat low bar, as courts generally hold that any place that is readily accessible by the public is, well,...

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The Problem with Aggravated Assault and DWI

[vc_row triangle_shape="no"][vc_column][vc_column_text]The law is very unethical when it comes to Aggravated Assault when mixed with DWI. Intoxication Assault There is a specific crime, called "Intoxication Assault," that combines assault with DWI and is a 2nd degree felony. Intoxication Assault requires serious bodily injury (SBI), which generally means broken bones, amputations, and other injuries that one might consider serious. A simple accident involving some cuts and bruises is not enough for Intoxication Assault, meaning the State should only have the ability to charge for DWI. There is one major problem with this, however. Aggravated Assault Even if the State cannot prove SBI, they law provides...

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Heavy Winds and DWI

[caption id="attachment_7336" align="alignleft" width="252"] Be Careful! Heavy winds and DWI or BWI are often related.[/caption] Heavy winds and DWI sometimes go together because heavy winds can have a large effect on a person's ability to drive. A common reason for a DWI stop is "swerving," but there are many potential reasons for that aside from intoxication. Heavy wind is one of those potential reasons. This can often be more true for Commercial Truck Drivers. With Texas weather, there can sometimes be no telling when a storm will hit. But, almost anyone who has decided to drive during a storm will say that...

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5 Scary Facts About a DWI in Texas

[vc_row triangle_shape="no"][vc_column][vc_single_image image="7282" img_size="medium" alignment="center"][/vc_column][/vc_row][vc_row triangle_shape="no"][vc_column][vc_column_text] 1. What? Why are police arresting me for a DWI in Texas even though I only take my prescription? The State often prosecutes cases when medications in a person's blood are in therapeutic range. Why? A state toxicologist, without any reference to a person's medication history (tolerance) will rely on the police report! This is not science. Mimi has won DWI in Texas cases on this. 2. What? Why are police arresting me for Texas DWI when I am responsibly sitting in my car calling an Uber? Asleep at the Wheel. The police will arrest a person in...

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Will You Parole Early? See TDCJ’s Consideration Chart

Convictions involving assaults, specifically family violence, carry a heavier price than many other convictions. Among the most important price is eligibility for parole early. The Texas Department of Criminal Justice has a "severity" chart that emphasizes offenses involving assault, even those you may not first think would count. For example, TDCJ considers Online Solicitation of a Minor an "assault" offense even though that offense does not involve physical contact. While not all of these offenses themselves are "3g" offenses for the purpose of parole eligibility, they are the offenses that very often contain a "deadly weapon" finding, which also impacts...

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