AY 1984 - Voice For The Defense Online

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SOME OBSERVATIONSON THE DWI LAWby Louis Dugas, Jr., OrangeThe legislation amending the driving you file a motion based on language inwhile intoxicated laws is not state of the White v. Sfate, 440 SW2d 660 (196% toart. This article is my attempt to place a challenge the constitutionality of the title.few well chosen, from my point of view, In the White case, the court held that theobsemations demonstrating the foibles function of a title was to facilitate andcontained therein.protect the legislatin process by afford-Beginning at the beginning with the ing leginlators and other mterested personstitle midway it reads:a ready and reasonably accurate means of". ..amendin$ Chapter 173, Acts of knowledge of the contents of bins withthe47th Legislature, Regular Sesouthaving to read the entlre text. Thesion 1941, as amended (Articlecourt continued:6687b, Vernon's Texas Civil Stat-''Since that is the function of theutes) by addiig Section 4A andtitle, requirements in legislative billsamending Subsections (a), @I andare determinedby what the title says(d), and adding Subsections (e), (f),and not by what it was intended to(g) and (h), Section 24;. ..""say."This portion of the titie is misleading.Second, 1 suggest that you file a mo-It does not indicate which section of Art- tion seeking probation under 6687(b)icle 6687(b) is amended. For example, Set. 24(d), which you contend is still inArticle 1 of 6b87@) has subsections (a),effect. This section allows a person to retain his liceme if placed on probation by(b) and (d).+L. P#...4Lll= UWUI b.'Ya) defves vehiclesMY observations wf&h fofl~w are not(b) defmes motor vehicles scientific, sstiu a jury is not composed of(c) defines school bus"scientists. * ~ ~ concentrations-l ~ ~ h ~ l mustUsually blood for testing is taken invials containing 3 GCS which is the sameas 3 milliiters. Can you visualize filling33 113 cc vials for a blood test. Or whatabout using a 50 cc tube so you will onlyhave to do it twice. A 50 cc vial is usednormally to inigate or for tube feeding.The normal blood test for intoxicatiorruses from 1 to 2 cc's of blood.Move on with def~tions:"C&) the number of grams of alclcohol per 210 liters of breath;''One liter of breath is equal to 1,000cc's. A liter is 1.057 US. quart. 210 litersof breath are the same as a 55 gallon drumof breath. Anyone capable of giving thatmuch breath is going to be drunk justfrom expeKmg air. Most breath machhesuse about 53.5 cc"s of breath. The definitionalso does not require the breath tobe "alveolar" which the machine maker\claim is the only ah which affords apt*per test result.Remember the word "means" wasun-Upon reading Section 2 of the Act be defied by the court in the charge. If derlimd. The court Of the US.(SBJ, 68th Legislature chapter 303) we this is done, the analysis below could be "bdte v. fimkM 58 L.Ed. 2d 596"see an apparently different intent. It 'argued to the jury. Section 3 of the Act '07, said:appears the Legislature intended to amend listed in Vernon's as 6701 1-5 is in quesarule, a which de-Section 24, Chapter 173, Acts of the 47th tion. The Fit definition is as follows:clares what a term 'means' excludesLegislature, Regular Session, as amendedany mean& that is not stated."(Article 6687(b)) Vernon's Texas Civil "(1) 'Alcoholconcentration'means:Statutes. (emphasis added for later emphasis) Another pertinent definition:It appears that the titleis afflicted with (a) the number of grams of al- "(4) 'Public place' has the meaninga similar disease as the one which befellthe Controlled Substance Act. I suggestcoho1 per 100 milliliters ofbloovassighed by Section 1.07(a)(291, Penal Code."24 VOICE for theDefem/May 1984
Section 1.07(a) (29) Penal Code defines."Public place" mas any place towhich the public or a substantial group ofthe public has access and includes, but isnot limited to, streets, highways, . . ."Keading the statute, particularly Section4, it recites that refusal of the test isgrounds for suspension of your hcense todrive if it occurred on a public highwayor beach. There is nothing in Section 4 ofthe Act mentioning streets. 1 suggest thatyou move to set aside any suspension ofyour client's license for failure to give atest ifhe or she is arrested on a city street.The Act in Section 4 sets out requirementsfor testing (6701 1-5, Sec. 3b). Itrequires that the DPS establish rules approvingtesting methods and the conditionsof breath testing and analysis. Thesemust be published in the Texas Register.Since this is a new statute it is a mandatoryrequirement. To date, I have notseen any rules offered or adopted. Moveto suppress the test results for this failureto publish in the Texas Register.Finally, Section 28 of the Act is underobservation. This is the section dealingwith other Acts and spells our whether ornot they are continued or repealed. ReadingSec. 28(a), one notes that 6704 1-5,in effect before January 1,1984, died onJanuary 1, 1984. It was not carried for-ward as evident from a reading of Section28(a)."Section 28. (a) 20 A person whobefore the effective date of this Actrefused to submit to a test is subjectto the law in effect when the refusaloccurred, and that law is continuedin effect for tlze disposition of administrativeproceedings against theperson." (Emphasis added)There is no presumption of intoxicationexisting in cases which occurred beforeJanuary 1, 1984. I am certain thereare other blemishes, but for now thesesuffice.Thoughts FromABehind the Walls () )A substantial segment of correspondence walls should notfdl on deaf ears, we havereceived by the VOICE each month comes created this new department for wideningwith a return address of one unit or mother the scope of what we hope will become aof the Texas Department of Corrections. meaningful dialogue between those en-In the past, most of this correspondence gaged in the pracrice of criminal law andhas appeared solely in the "Letters to the our penpals, "in their essays, articles andEditor" columns of this journal. In the letters. -Ed.belief that the voices from behrnd thoseDear T.C.D.L.A.:This is a request, respectfully submitted,to you for legal assistance in contestingthe constitutionality of the "MandatorySupervision" law as authorized byArticle 42.12 C.C.P.The factual application of MandatorySupervision raises several logical and legalissues which briefly are:1. Mandatory Supervision is not parole,and parole is not Mandatory Supervision;2. Mandatory Supervision only applies toone being released from T.D.C. who willliQe in America, but not to an alien whowill be deported to another Country uponrelease from T.D.C.3. Mandatory Supervision is "ConstructiveCustody and Future restraint;" and4. Mandatory Supervision requires aprisoner or inmate to serve his sentencein installments; aad5. Mandatory Supervision makes all sta-May 1984/VOICE for the Defense 25
Page 10 and 11: as to call for an exercise of this
Page 12: IMPROPER JURY 2AXmmTr NOT HARMFLTL
Page 15: The record is clear that from the f
Page 18 and 19: LThe accident occurred when I was a
Page 20 and 21: (7) the m e, post offioe address, a
Page 22 and 23: 9. Rule 36 governs the Brief of An
Page 26 and 27: tutory laws authorizing the award o
Page 28: -~~TEXAS CRIMINAL DEFENSE LAWYERS A

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