Motions for DWI Cases

• Author: Robert K. Gill/Mark G. Daniel
• Pages: 321-360

10-1

CHAPTER 10

MOTIONS FOR DWI

CASES

I. Motions to Suppress Evidence

A.Illegal Stop of Vehicle

§10:01Statutory Law

§10:02Stop Is a Seizure That Requires Reasonable Suspicion

§10:03Additional Arrests and Further Detention

§10:04 Motion in Limine Illegal Detention or Seizure of Defendant

B.Oral Statements on DWI Videotape

§10:10No Statement After Defendant Invokes Rights

C.Intoxilyzer Test Results

§10:20Statutory Law

§10:21State’s Burden for Admissibility

§10:22No Need to Establish Scientific Basis

D. Refusal to Submit to Breath Test

§10:25 Statutory Law

§10:26 Evidence of Refusal

E.Retrograde Extrapolation Evidence

§10:30Statutory Law

§10:31Definition and Purpose

§10:32State’s Burden for Admissibility

F.Blood Specimen

§10:40Statutory Law

§10:41Taking Specimen Is a Search, But Not Self-Incrimination

§10:42Requirements for Admissibility

Texas Criminal Forms 10-2

II. Motions to Quash

A.Quashing the Information or Indictment

§10:50Statutory Law

§10:51No Need to Allege the Intoxicant

B.Quashing the Enhancement Paragraph

§10:60Statutory Law

§10:61Priors Must Be Within Ten Years of Offense or Each Other

III. Stipulations to Jurisdictional Prior Convictions

§10:70Statutory Law

§10:71Offering to Stipulate

§10:72Stipulation Removes Need for Evidence

§10:73Fact-Finder Should Be Informed of Stipulation

IV. Motions in Limine

§10:80General Points

V. Petitions for Occupational Operator’s License

§10:90Statutory Law

§10:91Pre-Trial Application Is a Civil Matter

VI. Forms

Form 10-1.1Motion to Suppress Evidence Based on Illegal Stop of Defendant’s Vehicle

Form 10-1.2 Motion in Limine (Illegal Detention or Seizure of Defendant)

Form 10-2Brief in Support of Pre-Trial Motion to Suppress Evidence Based on Illegal Vehicle

Detention

Form 10-3Motion to Suppress Oral Statements Made on DWI Videotape

Form 10-4.1Motion to Suppress Evidence of Intoxilyzer Test Results

Form 10-4.2 Motion to Suppress Evidence of Intoxilyzer Test Refusal (Involuntary Consent)

Form 10-4.3 Motion to Suppress Evidence of Breath or Blood Test (Lack of Probable Cause)

Form 10-4.4 Motion to Suppress Evidence of Breath or Blood Test (Lack of Arrest)

Form 10-5Motion to Suppress Retrograde Extrapolation Evidence

Form 10-6Motion to Suppress Evidence of Blood Specimen

Form 10-7Motion to Quash Information or Indictment

Form 10-8Brief in Support of Motion to Quash DWI Information

Form 10-9Motion to Quash Enhancement Paragraph

Form 10-10Brief in Support of Motion to Quash Felony DWI Enhancement

Form 10-11Request to Stipulate to Jurisdictional Prior Convictions

Form 10-12Agreed Stipulation of Evidence

Form 10-13Defendant’s Motion in Limine

Form 10-14Petition for Occupational Operator’s License

Form 10-15Affidavit of Petitioner for Petition for Occupational Operator’s License

Form 10-16Waiver of Service for Petition for Occupational Operator’s License

Form 10-17State’s Request for Waiver of Presence at Hearing for Petition for Occupational

Operator’s License

Form 10-18 Order to Remove Interlock Device

Form 10-19 State’s Motion for Conditions on Occupational License

Form 10-20 Defendant’s Motion to Modify Conditions of Occupational Driver’s License

10-3 moTionsFor dWi Cases§10:02

I. MOTIONS TO SUPPRESS

EVIDENCE

A. illeGAl stopof vehiCle

§10:01 Statutory Law

United States Constitution Amend. IV.

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches or seizures, shall not be

violated, and no warrants shall issue but upon

probable cause, supported by oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

Texas Constitution Art. 1, §9.

The people shall be secure in their persons,

houses, papers, and possessions, from all

unreasonable seizures or searches, and no

warrant to search any place or to seize any

person or thing, shall issue without describ-

ing them as near as may be, nor without prob-

able cause, supported by oath or affirmation.

Tex. Code Crim. Pro. Art. 1.06. Searches and Seizures

The people shall be secure in their persons,

houses, papers and possessions from all

unreasonable seizures or searches. No war-

rant to search any place or to seize any per-

son or thing shall issue without describing

them as near as may be, nor without probable

cause supported by oath or affirmation.

Tex. Code Crim. Pro. Art. 38.23. Evidence Not to

Be Used

(a) No evidence obtained by an officer or

other person in violation of any provi-

sion of the Constitution or laws of the

State of Texas, or of the Constitution or

laws of the United States of America,

shall be admitted in evidence against

the accused on the trial of any crimi-

nal case. In any case where the legal

evidence raises an issue hereunder,

the jury shall be instructed that if it

believes, or has a reasonable doubt, that

the evidence was obtained in violation

of the provisions of this article, then

and in such event, the jury shall disre-

gard any such evidence so obtained.

(b) It is an exception to the provisions

of Subsection (a) of this article that

the evidence was obtained by a law

enforcement officer acting in objec-

tive good faith reliance upon a war-

rant issued by a neutral magistrate

based upon probable cause.

PRACTICE TIP:

While all of the above statutory provisions are

important to cite in a suppression motion and sup-

pression hearing, the most important is Tex. Code

Crim. Pro. Art. 38.23. This statute is the most inclu-

sive provision. It includes constitutional and statu-

tory provisions of both the state and federal gov-

ernments; it also covers searches and seizures by

private citizens as well as agents of law enforce-

ment. It should always be cited in the suppression

motion context. State v. Toone, 872 S.W.2d 750

(Tex.Cr.App. 1994); see also Texas Criminal Jury

Charges Chapter 12, Special Charges.

§10:02 Stop Is a Seizure That

Requires Reasonable

Suspicion

The stopping of a vehicle by law enforcement is

a “seizure” under the Fourth Amendment. Colorado v.

Bannister, 449 U.S. 1, 101 S.Ct. 42, 65 L.Ed.2d 1 (1 980);

State v. Sanchez, 856 S.W.2d 166 (Tex.Cr.App. 1993).

Officers may stop vehicles for investigative purposes

where they have specific articulable facts which, consider-

ing the officer’s experience and his inferences from those

facts, would reasonably warrant an intrusion on the free-

dom of the citizen stopped for such an investigation.

Reyes v. State, 910 S.W.2d 585 (Tex.App.—Amarillo

1995, pet. ref’d); Cardenas v. State, 857 S.W.2d 707

(Tex.App.—Houston [14th Dist.] 1993, pet. ref’d).

The stop of the defendant can be suppressed

where the officer has insufficient reasonable suspi-

cion to justify the detention. Johnson v. State, 912

S.W.2d 227 (Tex.Cr.App. 1995).

The defendant has the burden of production to

raise the issue that a search or seizure was illegal.

Russell v. State, 717 S.W.2d 7 (Tex.Cr.App. 1986).

For more on Motions to Suppress Evidence

based on illegal detention of individuals, see Chapter

3, Suppressing Evidence Seized From Persons.