dui by w. clay abbott dwi resource prosecutor texas district and county attorneys association
TRANSCRIPT
Who Cares?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?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 Procedures Based on Age in DUIDUI
• 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 OffendersStatus 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 OffendersIssue of Status Offenders
• Not Fair
• Documentable Decrease in Deaths
• Riskiest Drivers
• Riskiest Drinkers
• Generally same scheme as Minor in Possession
• Gateway
Trial IssuesTrial 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 InfluenceDriving Under the InfluenceAlcoholic Beverage Code Section 106.041Alcoholic 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 IntoxicatedDriving While Intoxicated
• Operate
• A motor vehicle
• In a public place
• While Intoxicated– .08 BAC– Loss of Normal Use
Section 49.04, Penal Code
Penalty DUIPenalty DUI
• 1st 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)
• 2nd 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 PriorWhat 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 JurisdictionWaiver of Jurisdiction
• Procedure
– What to include?
– Where to send the information?
– Response of Juvenile Court?
Penalty - 3rd OffensePenalty - 3rd 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 Magistrate Warnings to JuvenilesJuveniles
• Section 51.095 of the Family Code
• Applies only to Custodial Interrogation–What about electronic recordings?–Determination of voluntariness
Juvenile’s AppearanceJuvenile’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 AppearFailure to Appear
• Of the juvenile:– Jailing juveniles?– Unadjudicated children, now adults– Requirements before 17th birthday
• Of the parent– Article 45.202 Code of Criminal Procedure– Waiver of presence?