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Asiento asignado por el Registro Nacional de Asociaciones Español: Grupo 1º, Sección 1ª, Numero 600121 - NIF: G76556646 ...

Texas Drugged Driving

In Texas, a person commits a DUI if the person is intoxicated while operating a motor vehicle in a public place. Texas Penal Code Ann. § 49.04 (Vernon 2009).

Affirmative Defense

The fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense. Id. § 49.10.

Implied Consent

  • If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place the person is deemed to have consented to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance. Texas Transp. Code Ann. § 724.011(a) (Vernon 2009).

  • A specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer. Id. § 724.013.

  • A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person's trial. Id. § 724.061.

  • Defendant arrested for DUI is not entitled to consult an attorney before deciding whether to take a test. Texas courts have ruled that since test is not 'testimony,' it isn't protected. De Mangin v. State, 700 S.W.2d 329 (1985).

  • Officer is not required to allow defendant to choose which type of specimen he wanted to provide. Coggins v. State, 160 S.W.3d 177 (2005).

  • Implied consent statutes did not do not shield a defendant from blood draws pursuant to validly issued warrant. Dye v. State ,WL 361289 (2003).

Penalties

  • First offense Class B Misdemeanor - fine of up to $2,000; jail for 72 hours and up to 180 days; community service for 24 hours up to 100 hours; license suspension of up to one year; surcharge of $1,000 or $2,000 per year for three years. Id. § 49.04.

  • Second offense Class A Misdemeanor - fine of up to $4,000; jail for 72 hours to 365 days; community service for 80 hours to 200 hours; license suspension for 180 days to two years; surcharge of $1,500 or $2,000 per year for three years.

  • Third and subsequent offense Third Degree Felony - fine of up to $10,000; jail for two to ten years; community service for 160 hours to 600 hours; license suspension for 180 days to two years; surcharge of $1,500 or $2,000 per year for three years.

Other Penalties & Penalty Enhancer

  • If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days. Id. § 49.04.

  • DUI while vehicle is occupied by a passenger who is younger than 15 years of age is a felony. Id. § 49.045.

Sobriety Checkpoints

Texas has found sobriety checkpoints to be illegal under Texas interpretation of federal Constitution.

  • The checkpoint upheld by the U.S. Supreme Court in Michigan v. Sitz, was authorized by legislation. In light of the fact that no such legislative authority grants Texas law enforcement the right to conduct checkpoints, checkpoints are illegal under the U.S. Constitution. State v. Holt, 887 S.W. 2d 16 (1994).

Case Law

Smithhart v. State, 503 S.W.2d 283 (1973) -- Where evidence was insufficient to show that drug taken by defendant affected him to degree which would render him incapable of safely driving vehicle, conviction of defendant for operating motor vehicle while under influence of drugs could not be obtained on basis that valium taken by defendant may have had unusually severe effect on him because he had also been drinking vodka.

Lewis v. State, 708 S.W.2d 561 (1986) -- Testimony that defendant had used marijuana and alcohol and was he was operating erratically supported DUI conviction, despite no chemical evidence.

Dickerson v. State, WL 475800 (2006) -- Evidence of erratic driving and non-cooperative attitude, the fact that defendant admitted to drinking, and the fact that the defendant failed field sobriety tests were factually sufficient to convict for DUI.

Texas Penalties


Incarceration


Fine

Possession

2 oz or less*

class B misdemeanor

180 days

$2,000

2 to 4 oz*

class A misdemeanor

1 year

$4,000

4 oz to 1 lb*

state jail felony

180 days - 2 years

$10,000

1 to 5 lbs

state jail felony

180 days - 2 years

$10,000

5 to 50 lbs

felony of the third degree

2 - 10 years

$10,000

50 to 2,000 lbs

felony of the second degree

2 - 20 years

$10,000

More than 2,000 lbs

felony

5 - 99 years

$50,000

Sale

Gift of 1/4 oz or less

class B misdemeanor

180 days

$2,000

Sale of 1/4 oz or less

class A misdemeanor

1 year

$4,000

1/4 oz to 5 lbs

state jail felony

180 days - 2 years

$10,000

5 to 50 lbs

felony of the second degree

2 - 20 years

$10,000

50 to 2,000 lbs

felony of the first degree

5 - 99 years

$10,000

2,000 lbs or more

felony

MMS 10 - 99 years

$100,000

To a minor

felony

2 - 20 years

$10,000

Within 1,000 feet of a school or within 300 feet of specified areas

misdemeanor or felony

increased penalty

increased penalty

Miscellaneous (paraphernalia, license suspensions, drug tax stamps, etc...)

Paraphernalia possession

class C misdemeanor

none

$500

Paraphernalia sale

class A misdemeanor

1 year

$4,000**

 

Details

 

* With no prior felony convictions, if convicted of possession of less than one pound of marijuana a judge must impose a sentence of probation with mandatory drug treatment.  If no treatment center exists within the jurisdiction, the judge may waive the treatment requirement.  They judge can also waive all fines.

** Unless previous conviction of paraphernalia sale or possession (if previous conviction, 90 days to 1 year). Paraphernalia sale to a minor at least 3 years younger than actor- State Jail Felony =  180 days-2 years; $10,000

Possession of two ounces or less of marijuana is punishable by up to 180 days in jail and a fine up to $2,000. Possession of greater than two ounces is punishable by up to one year in jail and a fine up to $4,000. For greater than four ounces the penalty increases to 180 days - two years in jail and a fine up to $10,000. Possession of greater than five pounds carries a penalty of 2 - 10 years in prison and a fine up to $10,000. For greater than 50 pounds the penalties increase to 2 - 20 years in prison and a fine up to $10,000. For any amount greater than 2,000 pounds the penalty is 5 - 99 years and a fine up to $50,000.

The penalty for delivery, without remuneration, of one-quarter of an ounce or less is up to 180 days in jail and a fine up to $2,000. For delivery or sale of one-quarter of an ounce or less the penalty is up to one year in jail and a fine of up to $ 3,000. For delivery or sale of amounts greater than one-quarter ounce of marijuana the penalty increases to 180 days - 2 years in jail and a fine up to $10,000. Sale or delivery of greater than five pounds is punishable by 2 - 20 years in prison and a fine up to $10,000. The penalty for delivery or sale of greater than 50 pounds is 5 - 99 years in prison and a fine up to $10,000. For any amount of 2,000 pounds or greater, the penalty is a mandatory minimum 10 - 99 years in prison and a fine up to $100,000.

Any sale to a minor is punishable by 2 - 20 years in prison and a fine up to $10,000. Sale within 1,000 feet of a school or within 300 feet of a youth center, public pool or video arcade increases the penalty classification to the next highest level.

Repeat Misdemeanor Offenses:

  • If charged with a Class A misdemeanor and defendant has been before convicted of a Class A misdemeanor or any degree of felony = 90 days-1 year; $4,000

  • If charged with a Class B misdemeanor and defendant has been before convicted of a Class A or Class B misdemeanor or any degree of felony = 30 days-180 days; $2,000

  • If charged with a Class C misdemeanor and defendant has been before convicted under one or a combination of the two above three times and the prior offense was committed within 24 months of incident = > 180 days; $2,000  

Repeat Felony Offenses:

  • If charged with a state jail felony punishable and defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third-degree felony.

  • If charged with a state jail felony punishable and defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.

  • If charged with a state jail felony or of a third-degree felony and defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.

  • If charged with a second-degree felony and the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony.

  • If it is a first-degree felony and defendant has been once before convicted of a felony, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years.  In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.



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