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I could poke a 10 foot hole in any dui case using the Code Of Criminal Procedure Chapter 16 - The Commitment Or Discharge Of The Accused.

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Looking forward to see how this works out for you.

And Stucco, you think that Chapter 16 is unknown to anyone but you? I used to teach a 40 hour class to police officers over nothing but Chapter 16 and 18. Like your 5th amendment argument, these things have been tried and shot down. Some VERY talented defense attorney's have thrown everything they could at these programs and they have failed. I seriously doubt you know something they don't.

So you think I could get an examining trial on a dui case then?

Not unless it is a felony DWI. Art. 16.01 only applies in felonies. Clark v. State (Cr.App. 1967) 417 S.W.2d 402. For a DWI to be a felony, you either have two prior convictions, seriously injured or killed someone or you have a child under 15 in the vehicle. In addition, the failure to hold an examining trial will not effect the validity of a subsequent indictment. As soon as the defendant is indicted, the defendant looses his right to an examining trial. In my experience, in a felony, the quickest way to guarantee an indictment is to file a motion for an examining trial.

Bottom line is drunk/buzzed-driving is wrong and against the law. I'm not a hypocrit. I'm guilty of doing this in the past (as I'm sure a LOT of Aggies and TexAgs posters are), and now do everything I can to avoid it.

While I do not approve of the "no-refusal" practice, I do think it makes people stop and consider their (planned) actions a bit more. I strongly dislike the fact that I have been pulled over EVERY time I've approached OR left Chilifest for bogus reasons, all in the name of a drunk witch-hunt. its important to note I've never been cited for anything during these stops, but its still annoying.

Anyway, I'm of the mind that you should still refuse the field sobriety test. Sure it may cause a headache, but I'll take a forced blood-test versus a coerced breathalyzer reading and subjective balance test any day. I won't lose my license if I'm cleared of any wrong-doing, so bring it on.

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I won't lose my license if I'm cleared of any wrong-doing, so bring it on.

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You will lose your license for refusing the tests, even if you're later acquitted of DWI.

I'm arrested without warrant so 14.06 applies and points to 15.17 which says I will be informed by the magistrate of my right to an examining trial, and it doesn't just refer to felony in that circumstance. The 16.01 referral is specifying the timing of an examining trial, that it come before indictment. It is not limiting the right to those accused of a felony.

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You will lose your license for refusing the tests, even if you're later acquitted of DWI.

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If I technically "can't" refuse the blood test, then I shouldn't lose my license. I've had friends who have refused the field tests, gone to the station and taken the secondary breath test, PASSED, and been released without losing a thing. If you can refute this, please feel free to do so.

Informed, first you said you were going to refuse the breathalyzer test & take a "forced" blood test, implying that you would not consent to the blood test & they would have to get a warrant, i.e. "no refusal".

Then you say a friend passed the breath test - then obviously your friend consented to the breath test, so that's a completely different situation.

If you actually refuse the chemical tests, here's why you will most likely lose your license:
http://www.txdps.state.tx.us/director_staff/Public_information/pr082301alr.htm

edit: removed unwanted smiley

[This message has been edited by NateDog (edited 4/15/2010 1:41p).]

I really doubt that this "no refusal weekend" makes people stop and think about what they are doing. There are plenty of ways around the cops coming back from Chilifest, anyone familiar with the area around Snook knows how to get from place to place without touching 60 or running into the large dragnet of cops waiting to pull over every car they can. Even without resorting to back roads the simplest way to avoid the cops is wait to leave until the Chilifest gates are locked. By that time there are few if any cops on 60.

As a caveat: I'm not supporting drinking and driving, I always stop drinking by 2 on Saturday just to be safe.

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Its goal is to get drunk drivers off the road by revoking their driver licenses.

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1st offense for driving without a license:

misdemeanor, $200 fine

DUI: $2,000 fine + jail time

seems like refusal is the way to go...

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seems like refusal is the way to go...

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I would agree, but beware the possible double whammy of an ALR *and* a DWI case. If they can't show your BAC was >= 0.08, they can still try to convince a judge/jury that you didn't have normal use of your mental and physical faculties. Also, since DWI doesn't have to involve alcohol at all, you could blow 0.00 but be whacked out on drugs and really deserving of a DWI charge/conviction.

But we're getting away from the "no refusal" topic, so hopefully litig8r will issue another round of spankings and put this thread to bed.

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so hopefully litig8r will issue another round of spankings and put this thread to bed.

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There was a first round?

I'd say there have been several rounds.

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Search warrants for blood in DWI has been around for about 7 years now.

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The law in this regard won't be changing in our life times.

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These two statements were all I needed to dismiss lit's postings. Either he is 6 or the law is very capable of changing in his lifetime.

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A question I would like to ask any Libertarian is "why do you allow the government to install stop signs, traffic lights etc ?"

Do Libertarians believe in any laws and why or why not. It appears to me that a true Libertarian would only follow the law of your conscience. I would think that would end in caos.

I am not trying to condemn, I just want to know what laws a Libertarian would follow and why.

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BCO, I'm very sorry I missed this, as it is one of my favorite questions.

the short answer to your first question is, "I don't."

Anarchy ends in chaos, which is the fine line that real liberty walks...

There are plenty of laws that any Libertarian believes in, but they aren't things somebody put on paper. First there are the simple ones such as the laws of physics... the unbreakable ones. Then there are the social definites. Things like, if you anger those around you you're subject to what they feel is necessary retaliation. No amount of police or government in the world can prevent one person from doing something on a snap decision.

Then you get into life and property, which is were some form of city, county, state, and federal government is necessary. There must be some entity to insure security of possessions when they are not in your presence (home, vehicle, ...any property) otherwise those of lesser moral character would just take what they want while you work for what you have... (oh, funny how that currently happens, too, huh?) That is what the city/county government is in place for. To make sure the self-governed populace is playing nice, but only interfere enough to resolve conflicts. The State is there to make sure the counties play nice, and the Feds are there to keep things running smoothly between the states.

Basically it boils down to, "can you sleep at night?", and "are your neighbors happy?"...you have to live with yourself, and it's hard to stay alive if the people around you don't want you.

Somewhere in time, (cough::the1860s::cough) there was a perversion of the system where the feds, instead of staying in a regulation role between the states, started barking orders and telling them what they could and could not do...

I guess I have a few questions of my own, too.

Which of you had parents who would make you and your siblings settle a conflict by saying:

A) "Alright, <first> tell me your story, <second> tell me yours, okay, no TV until you've worked it out, I'll be here to help, and hear your resolution"

B) "Go to your rooms, no TV"

C) "<first> you weigh more, and as such, you get to pick how things will be settled?"

D) "I didn't have parents, or siblings." (PC reasons)


...and what is your current political stance?

A - Libtertarian

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Then you get into life and property, which is were some form of city, county, state, and federal government is necessary. There must be some entity to insure security of possessions when they are not in your presence (home, vehicle, ...any property) otherwise those of lesser moral character would just take what they want

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If you believe that government and laws is necessary to "insure security of possessions when they are not in your presence," then you'd agree that those laws are also necessary to protect your life and property from conditions that aren't under your control? Right? Then you should be all for traffic laws and its enforcement. It's to insure your life and property are secure from others and their misdeeds. If you are going to turn around and argue that no stop sign or motorcycle cop parked nearby would keep someone from running a stop sign, then one could argue, how does making burglary/robbery illegal and having police case neighborhoods keep someone from stealing? After all, you say that "no amount of police or government in the world can prevent one person from doing something on a snap decision."

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then you'd agree that those laws are also necessary to protect your life and property from conditions that aren't under your control? Right?

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No.

That is an impossible task.

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If you are going to turn around and argue that no stop sign or motorcycle cop parked nearby would keep someone from running a stop sign, then one could argue, how does making burglary/robbery illegal and having police case neighborhoods keep someone from stealing?

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one of two things happen when that stop sign is run: 1) vehicle continues on, 2) vehicle collides after failing to yield right of way.

Only one thing happens when somebody burgles a house... property is stolen.

apples, meet oranges.

If that run stop sign results in an accident, it is negligence...If not, no harm, no foul.

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one of two things happen when that stop sign is run: 1) vehicle continues on, 2) vehicle collides after failing to yield right of way.

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You forgot a couple of possibilities. One, your vehicle is destroyed and you only have liability insurance, so you're hosed (loss of property due to negligence), and two, you DIE.

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apples, meet oranges.

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Nope.

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If that run stop sign results in an accident, it is negligence...If not, no harm, no foul.

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If that gunshot aimed at you results in hitting you, it is negligence... If not, no harm, no foul? (vehicles can be considered deadly weapons)

This page of comments was constructed to hide the ownage on page 4...

This is page 4!


That gun, when intentionally aimed at a person and fired, is an attack... Same with a motor vehicle. Negligent discharge is a different story, and yes... No harm, no foul.

NateDog, my friend refused the breath test and field sobriety tests. So they carted him off in handcuffs. Once at the jail, they offered him the second breath test (SOP) and he passed. No DUI, no lost license.

My point is, if I were pulled over and asked to take a breathalyzer, drunk or sober, I would refuse and make them take me to the station for a blood test. According to some on here, if you refuse the first breath test you lose your license. I was refuting that with my friend's recap since he refused the first breath test, but passed the second one after already being in custody.

If the "no refusal" means you can't even refuse the breath test, then that's complete and total BS.

There is nothing in the law about a first, second or third test. If you refuse any test your license can be administratively suspended. Period.

That's punishment without conviction or burden of proof.

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That's punishment without conviction or burden of proof.

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Yep - administrative, not criminal.

The only test that will result in an ALR is the "in house" intoxilyzer. Some officers carry a Portable Breath Testing instrument (PBT). The results of the PBT is not admissible in court and there is no ALR for refusing to take that test.

So, InformedAg, I suspect your friend was given a series of Standardized Field Sobriety Tests (SFST) and was ask to blow into a PBT. He refused to blow into the PBT so, based on the results of the SFST, he was arrested for DWI. He was then taken to the jail/police department and was then offered the "real" intoxilyzer test. Here he would have been read a series of warnings from a form known as a DIC-24 that explains the DL consequences of refusing the test or taking the test and failing.

If you take the BT and pass, there is no driver's license suspension. If you take it and fail, your DL will be suspended for 6 months (I believe). If you refuse to take the test, your DL will be suspended for 1 year.

These suspensions operate completely independent of the prosecution of the DWI case. What that means is, even if the DWI is later refused by a prosecutor or dismissed or even if you are found not guilty, it has no bearing on whether or not your DL will be suspended.

As I stated before, there is an administrative procedure to fight the ALR but the time frames to invoke those rights are short and you better get an attorney quick to do it. You should also know that most of them are not successful (but it does give your attorney some good information to defend your DWI case).

Tex Reb, if you DL is suspended and you get caught driving , it is not simply driving without a DL. You will be charged with Driving While License Invalid (DWLI) which carries up to 180 days in jail and a fine and ...... wait for it ........ MORE DL SUSPENSION.

Natedog, you are correct about two ways to prove intoxication. And, as you stated, you can be intoxicated by alcohol, legal drugs (prescribed) or controlled substances or any combination of these. so just because you have a prescription for Xanax, you can be arrested for taking them and driving if they impair your normal use of mental and physical faculties.

Stucco, let me put this simply. you are not going to get an examining trial for a misdemeanor no matter how you are arrested or what you think the code says. Won't happen, no way. Sorry.

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Stucco, let me put this simply. you are not going to get an examining trial for a misdemeanor no matter how you are arrested or what you think the code says. Won't happen, no way. Sorry.

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Which is exactly why I will have cause to have the entire thing dismissed based on Chapter 16.

Sounds an awful lot like "circular reasoning works because circular reasoning works."

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§ 521.457. Driving While license Invalid (Suspended)

(a) A person commits an offense if the person operates a motor vehicle on a highway:

(1) after the person's driver's license has been canceled under this chapter if the person does not have a license that was subsequently issued under this chapter;

(2) during a period that the person's driver's license or privilege is suspended or revoked under any law of this state;

(3) while the person's driver's license is expired if the license expired during a period of suspension; or

(4) after renewal of the person's driver's license has been denied under any law of this state, if the person does not have a driver's license subsequently issued under this chapter.

(b) A person commits an offense if the person is the subject of an order issued under any law of this state that prohibits the person from obtaining a driver's license and the person operates a motor vehicle on a highway.

(c) It is not a defense to prosecution under this section that the person did not receive actual notice of a suspension imposed as a result of a conviction for an offense under Section 521.341.

(d) Except as provided by Subsection (c), it is an affirmative defense to prosecution of an offense, other than an offense under Section 521.341, that the person did not receive actual notice of a cancellation, suspension, revocation, or prohibition order relating to the person's license. For purposes of this section, actual notice is presumed if the notice was mailed in accordance with law.

(e) Except as provided by Subsection (f), an offense under this section is a misdemeanor punishable by:

(1) a fine of not less than $100 or more than $500; and

(2) confinement in county jail for a term of not less than 72 hours or more than six months.

(f) If it is shown on the trial of an offense under this section that the person has previously been convicted of an offense under this section or an offense under Section 601.371(a), as that law existed before September 1, 2003, the offense is a Class A misdemeanor.

(g) For purposes of this section, a conviction for an offense that involves operation of a motor vehicle after August 31, 1987, is a final conviction, regardless of whether the sentence for the conviction is probated.

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Which laws are you looking at? I've got $100-$500 with 3 - 180 days in jail... no extra suspension mentioned...

TexReb, That's it except you quoted the out of date version. It was amended in 2009. Now the punishment for DWLI when your DL is suspended for DWI is a straight Class B with a punishment of up to 180 days in jail and a fine of up to $2000.00. The DL suspension stuff is at Sec 521.292 and Sec. 521.293. No sense and putting all together is there?

sure there is...

at that point, racking up a few more fines isn't much of a big deal... at the very worst, you end up with all of your bills paid, a place to live, and work you can't get fired from...


again, it is still contingent on the person getting caught, not only once, but again. Enough can be written about the cases and punishments to fill the astrodome 3 times over, but it still won't keep people from doing it, as it is an ability, and as such cannot be prevented.