DUI By W Clay Abbott DWI Resource Prosecutor

DUI By W. Clay Abbott DWI Resource Prosecutor Texas District and County Attorneys Association

Who Cares? • Leading Cause of Death 16 -21 • In 2006 in Texas 1677 alcohol related fatalities • 48% of all traffic fatalities in Texas alcohol related • 457 16 -20 year olds • 26. 52 of every 100, 000 in that group

Minor v. Child? • Statutes have not defined the term “juvenile. ” • 106. 01 ABC: defines “minor” to mean a person under age 21. • FC: a minor who is a least age 10 and under age 17 is also a “child. ”

Procedures Based on Age in DUI • • No offense if 21 on offense date 17 -21 treat offender as an adult 10 -16 treat offender as child 9 or under…. . – Charge the parents

Status Offenders • Section 51. 02(15) defines “status offender” as “a child who is accused, adjudicated, or convicted for conduct that would not, under State law, be a crime if committed by an adult. ” • The statute lists crimes that are status offenses.

Issue of Status Offenders • • • Not Fair Documentable Decrease in Deaths Riskiest Drivers Riskiest Drinkers Generally same scheme as Minor in Possession • Gateway

Trial Issues • Under Charging • Citation v. Arrest • Detectable Amount – Minor in Possession – Portable Breath Test – Smell – SFSTs and Observations • Operating – Minor in Consumption

Driving Under the Influence Alcoholic Beverage Code Section 106. 041 • • • A minor Operates A motor vehicle In a public place Having ANY detectable amount of alcohol in the minor’s system

Driving While Intoxicated Section 49. 04, Penal Code • • Operate A motor vehicle In a public place While Intoxicated –. 08 BAC – Loss of Normal Use

Penalty DUI • 1 st Offense – $1 - $500 Fine – Alcohol Awareness Course – Mandatory Community Service of 20 -40 hours related to education about or prevention of misuse of alcohol – Automatic 60 day driver’s license suspension (Court does not order) • 2 nd Offense – $1 - $500 Fine – Discretionary Alcohol Awareness Course – Mandatory Community Service of 40 to 60 hours – Automatic Driver’s License Suspension of 120 days (Court does not order)

What is a Prior • • • Alcoholic Beverage Code 106. 071 (f) Adjudication in Juvenile Court Prior Deferred Disposition under 45. 051 As Child or Adult Conviction and Fine Proving Priors is Required – Do you have written judgments?

Waiver of Jurisdiction • Procedure – What to include? – Where to send the information? – Response of Juvenile Court?

Penalty - 3 rd Offense – Penalty • Up to 180 Days • $500 -2000 Fine • 40 -60 Hours of CS – Age 17 or Older • Filed in County Court • No Deferred Adjudication – Under 17 • Filed in Juvenile Court

Magistrate Warnings to Juveniles • Section 51. 095 of the Family Code • Applies only to Custodial Interrogation – What about electronic recordings? – Determination of voluntariness

Juvenile’s Appearance • Article 45. 0215, Code of Criminal Procedure: Open Court • Determine sophistication and maturity of juvenile. • Article 45. 057, Code of Criminal Procedure: Notification of Change of Address • Parent’s Appearance • ALL pleas on DUI must be in open court before a judge – Alcoholic Beverage Code 106. 10

Failure to Appear • Of the juvenile: – Jailing juveniles? – Unadjudicated children, now adults – Requirements before 17 th birthday • Of the parent – Article 45. 202 Code of Criminal Procedure – Waiver of presence?

Sentencing • Community Service must be related to education about or prevention of alcohol abuse – If no programs are available in court’s jurisdiction – Court orders CS it considers appropriate to rehabilitation • Other general 45. 051 conditions may be ordered