Keller & Southlake DWI Defense Guide | HLAW

What You Can, Should, and Must Do While You are Driving on an Occupational Drivers License in Texas

If you’ve received an occupational license related to a DWI ALR suspension (blood or breath test refusal or failure) in Texas, the judge who granted you that license likely included several restrictions and requirements you must follow. Those requirements can be found in the order granting your occupational license. You should have that order handy because Texas Transportation Code Section 521.250 requires you to possess a certified copy of the order when you drive. In fact, it’s a criminal offense not to possess a certified copy (we’ll revisit that below.)

Learn About Your Restrictions and Requirements

It all starts with the order that the judge signed. Review it. When reviewing the order granting your occupational license, you will find various restrictions and requirements. Restrictions typically limit your time, location and purpose of travel. In some scenarios, people are restricted to use an occupational license only when driving a vehicle equipped with an ignition interlock device. Other requirements can vary. They often include (but are not limited to) keeping a travel logbook, no traffic citations, no radar devices, etc. Specifically, however, Texas Transportation Code Section 521.245 requires the judge to require the person attend some form of an alcohol dependency program in the order granting occupational license. The order can also require you to submit proof of attendance to the court.

What Happens if Fail to Follow The Occupational Drivers License Restrictions or Requirements?

Texas Transportation code 521.253 says:
(a) A person who holds an occupational license commits an offense if the person:
.....(1) operates a motor vehicle in violation of a restriction imposed on the license; or
.....(2) fails to have in the person's possession a certified copy of the court order as required under Section 521.250.
(b) An offense under this section is a Class B misdemeanor.
(c) On conviction of an offense under this section, the occupational license and the order granting that license are revoked.

What about not complying with the requirement for attending an alcohol dependency program? Per Texas Transportation Code Section 521.245, judges have the authority to revoke the occupational license and impose an additional 60-120 day suspension. That additional suspension is costly, too. Unlike the original DWI ALR suspension where you could apply for an occupational license, there is no option for another occupational license if you were granted one and failed to comply with this requirement.

Don't Run Afoul of the Occupational DL Rules or Restrictions

So, the suggested practice here is simple:

1. Have a certified copy of the order granting your occupational license.
2. Read it carefully and educate yourself about the restrictions/requirements involved.
3. Comply with said restrictions/requirements for the duration of your occupational license.

If you have questions about your occupational license, contact your attorney for assistance. If you don’t have an attorney, the attorneys at Barnett, Howard & Williams, PLLC are only a phone call away.

In November of 2015, we wrote about State v. Byram, a DWI case out of Tarrant County. In Byram, the 2nd Court of Appeals held that a "hunched over" passenger in a vehicle was not enough to invoke the police "community caretaking" function to allow the police to initiate a traffic stop without reasonable suspicion of a violation.  The 2nd Court reversed the DWI conviction and remanded the case back to the trial court. The State appealed this decision to the Texas Court of Criminal Appeals, which issued its opinion today.

When May the Police Invoke the "Community Caretaking" Function to Make a Stop or Detention Without Reasonable Suspicion?

Byram v. State (Tex.Crim.App. 2017)

In this case, State argued that the police officer was engaged in his "community caretaking" function when he pulled the driver over. The State contends that this was a proper exercise of police authority and that the primary purpose of the stop need not be to investigate any alleged violation.

Reviewing the facts in the light most favorable to the trial court's ruling (denying the suppression motion), the CCA agreed with the State and explained its view on the Community Caretaking function:

Local police officers frequently engage in “community caretaking functions,” totally divorced from the detection, investigation, and acquisition of evidence relating to the violation of a criminal statute. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “As part of his duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a reasonable person—given the totality of the circumstances—would believe is in need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999). However, because the reasonableness of a community-caretaking seizure sprouts from its dissociation from the competitive enterprise of ferreting out crime, “a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non–community caretaking purpose.” Corbin v. State, 85 S.W.3d 272, 276-277 (Tex. Crim. App. 2002).

The Court went on to lay out a two-step test for determining whether an officer may properly invoke his community-caretaking function:

1. whether the officer was primarily motivated by a community-caretaking purpose; and
2. whether the officer’s belief that the individual needed help was reasonable.”*

*The standard for reasonableness is no different when the officer stops a vehicle to check the welfare of a passenger rather than the driver. Wright, 7 S.W.3d at 151.

In this particular case, the CCA held, "[the officer] saw a woman in a precarious situation, and acted reasonably to help her by first asking whether she was okay, and then conducting a traffic stop when his
question went unheeded. This is the sort of 'sound, commonsense police work that reason
commends, rather than condemns.'"

Can Texas Charge a Person with a Crime for Refusing a Breath or Blood Test During a DWI Stop?

In Texas, when a person refuses to provide a breath or blood specimen when being arrested for alleged drunk driving offense, their driver’s license is typically suspended. But, can a state have a law that additionally makes it a crime to refuse a breath or blood test? In Birchfield v. North Dakota, the United States Supreme Court held that a state can attach a criminal penalty to those that refuse to submit to a warrantless breath test but they cannot for those that refuse to submit to a warrantless blood test.

In a previous blog post we discussed the oral arguments that took place in this case and briefed the three cases facing the court, Birchfield , Bernard and Beylund.  Birchfield had been criminally prosecuted for refusing a warrantless blood draw; Bernard had been criminally prosecuted for refusing a warrantless breath test; and Beylund, while not criminally prosecuted for refusing a test, submitted to a blood test after the officer told him the law required it. Birchfield v. North Dakota 579 U.S. ____ (2016).

U.S. Supreme Court Issues Opinion in Birchfield Upholding Criminal Penalty for Breath Test Refusal (But Not Blood)

SUPREME COURT DECISION - Birchfield v. North Dakota

First, the Court determined whether warrantless breath and blood tests were proper searches incident to arrest for drunk driving. The Court held that since “breath tests are significantly less intrusive than blood tests” and in most cases adequately serve law enforcement interests, the Fourth Amendment permits a warrantless breath test but not blood test as a search incident to arrest for drunk driving.

Next, the Court addressed the argument that when making the decision to drive on a public road, drivers are deemed to have given consent to submit to a blood test. Applying the Fourth Amendment reasonableness standard, the Court held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Birchfield, 579 U.S. ____ (2016).

Finally, the Court applies these legal conclusions to the three cases.  In Birchfield, the Court held that the judgment affirming his conviction must be reversed because the warrantless blood draw was not a justified search incident to arrest and he was thus, threatened with an unlawful search. In Bernard, the Court held that Bernard had no right to refuse the breath test because it was a proper search incident to arrest. In Beylund, the Court vacated the judgment and remanded the case to the state court to reconsider Beylund’s consent given the partial inaccuracy of the officer’s statement that “the law required it.”

In conclusion, the Supreme Court held that States may enact laws that attach criminal penalties to the refusal to submit to a breath test but they may not enact such laws that will apply to refusal to submit a blood test. So what does this mean for Texas? Well, while we do not currently have laws in place that attaches a criminal penalty to refusal of a breathalyzer, the State could enact a law that makes it a crime to refuse to provide a warrantless breath test incident to arrest of drunk driving.

What happens when someone who illegally enters the country commits a crime? Further, does it matter is that person was previously deported from the United States? Does federal law provide for sentencing enhancements to extend the prison terms for wrongdoers in this position? The answer is yes—and no. Read on to see how the Fifth Circuit Court of Appeals analyzes federal statutes and sentencing guidelines that could support such an enhancement for the defendant, but decides against doing so.

US v. Rodriguez (5th Circuit, 2016)

A 2002 Theft and Deportation Set the Stage

In 2002, Benito Sanchez-Rodriguez, an "undocumented immigrant," was convicted in Florida for “Dealing in Stolen Property,” a violation of a state law. Pleading guilty at trial, Rodriguez was sentenced to three years’ imprisonment, which was suspended for three years’ probation. Six months later, he was deported to Mexico because he had no legal status to remain in the US. Over a decade later, in 2014, Rodriguez was arrested for DWI in Texas. While under arrest, the federal government charged him will illegal entry into the US. Ultimately, Rodriguez was indicted on one count of illegal reentry into the US, a violation of federal statute 8 U.S.C. § 1326(a) and (b)(1).

Rodriguez Faces Criminal Charges, Again

In August of 2015, Rodriguez plead guilty to the illegal entry indictment and the district court accepted his plea. Before the sentencing phase, a US Probation Officer prepared a “pre-sentence investigation report” (“PSR”), relying upon the United States Sentencing Guidelines (“USSG”). The PSR assigned Rodriguez base offense level of 8, which was raised by 8 additional levels because of the 2002 “Dealing in Stolen Property” conviction (an aggravated felony qualifier), for a total base offense level of 16. U.S.C. § 2LI.2(b)(1)(C). The PSR added that because Rodriguez took responsibility by entering a guilty plea, the total base offense level was reduced by 3, for a final total of 13. The PSR recommended that with a base offense level of 13, Rodriguez should face between 24 to 30 months in federal prison. Rodriguez objected both on the record and in writing, arguing that the 2002 conviction was not an aggravated felony qualifier, however, the district court adopted the PSR’s recommendations. Accordingly, he was sentenced to 27 months’ imprisonment.

Rodriguez Appeals to the Fifth Circuit, Argues Florida Statute Overbroad

Rodriguez now appeals to the Fifth Circuit for relief, arguing, that the 2002 conviction is not an aggravated felony qualifier for sentencing purposes because the Florida law “Dealing in Stolen Property” is overly broad. The Fifth Circuit must determine whether Rodriguez’s prior 2002 conviction qualifies as an “aggravating felony offense” under the USSG, because if so, he faces a longer prison term and could potentially set a precedent for the federal “aggravated felony qualifier” status of this Florida law.

Federal Law: Sentencing Enhancements

A defendant’s base offense level will be increased by 8 levels if the defendant previously was deported, or unlawfully remained in the US after conviction for an aggravated felony, without regard to the date of the conviction for the aggravated felony. U.S.S.G. § 2LI.2(b)(1)(C); U.S.S.G. § 2LI.2 cmt. N.3(A); United States v. McKinney, 520 F.3d 425, 429 (5th Cir. 2008). An aggravated felony is defined as a “theft offense, including receipt of stolen property, or burglary offense, for which the prison term is at least one year.” 8 U.S.C. § 1101(a)(43)(G).

Federal Cases: Determining Aggravated Felony Qualifiers

A “categorical approach” is used to determine whether a prior conviction is an offense under the USSG. Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Rodriguez-Negrete, 772 F.3d 221, 224-25 (5th Cir. 2014). Courts compare the elements of a statute forming the basis of the defendant’s conviction with the elements of the generic crime (the offense as it is commonly understood). United States v. Schofield, 802 F.3d 722, 727-28 (5th Cir. 2015). If the offense of conviction has the same elements as the generic crime, then the prior conviction may serve as the predicate, because anyone convicted under that law is guilty of all of the elements. Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013).

Similarly, a “modified categorical approach” is used by courts to analyze the elements of a divisible statute (a criminal statute that is comprised of several varied offenses). In a two-step “modified categorical approach,” the court first reviews indictments and jury instructions, among other documents, to determine which part of a statute formed the basis of a defendant’s prior conviction. Next, the court compares the elements of the crime of conviction with the element of the general crime.

The Fifth Circuit Weighs In

Here, the Fifth Circuit adopted the modified categorical approach to analyze the case. Here, the “generic crime” is a theft offense—the “Dealing in Stolen Property” conviction from 2002. Because the provision does not clearly define “theft offense,” the Fifth Circuit applied the generic definition of theft, “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership.” United States v. Medina-Torres, 703 F.3d 770, 774 (5th Cir. 2012)(per curiam). Burke v. MuKasey, 509 F.3d 695, 697 (5th Cir. 2007).

The court examined the Florida statute reads, “Traffic means to (a) sell, transfer, distribute, dispense or otherwise dispose of property; (b) to buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of property.” Fla. Stat. § 812.012(8). Next, the Court reviewed Rodriguez’s charging document, which read, “Rodriguez knew or should have known that the property was stolen.” The Court examined Florida case law that showed that Florida applies the statute to conduct outside of the generic definition of theft—which created a problem when applying this conviction to the sentencing enhancement provision as outlined in the PSR. Without the enhancement provision, Rodriguez’s sentence would likely not have been as long with a lower base offense level. Accordingly the Fifth Circuit vacates the 27-month prison term and remands the case for resentencing only.

In a Warrantless DWI Blood Draw Case, State Offers "Understaffing of Police" as an Exigent Circumstance.

Bonsignore v State (2nd Court of Appeals - Fort Worth, 2016)

After traveling eighty miles an hour in a forty miles per hour zone, Jeremy Bonsignore pulled into a Waffle House and started walking toward the restaurant. Unknown to Bonsignore, law enforcement had been following him for several minutes. Once the officer pulled into the parking lot, he activated his lights and began yelling at Bonsignore to stop walking. Bonsignore turned around, stumbled, and lost his balance. The officer noted the presence of a strong odor of alcohol and that Bonsignore’s eyes appeared glassy.

Bonsignore admitted to having a few drinks earlier in the day, which prompted the officer to conduct several field sobriety tests. Bonsignore failed them and then abruptly refused to do anymore tests or provide a breath or blood sample. Bonsignore was placed under arrest at 1:49 am. Dispatch informed the officer that Bonsignore had two prior DWI convictions, which could amount to Bonsignore being a repeat DWI offender, a felony offense. With this information in mind, the officer instructed a second officer to take Bonsignore to the hospital for a mandatory blood draw. The blood draw was conducted at 2:55 am. Bonsignore did not consent to the taking of his blood and the officer did not obtain a warrant.

Warrantless Blood Draw Issue at Trial

Before trial began, Bonsignore filed a motion to suppress the results of the blood draw, arguing that the blood draw was warrantless, and therefore, unconstitutional. The motion was never officially ruled upon, although the court did take the motion under advisement. During trial, when asked why he ordered the blood draw, the officer said that Bonsignore’s “two prior convictions were his only authority for obtaining the blood draw.” The officer did not attempt to obtain a search warrant, and he acknowledged that Bonsignore did not give his consent to a blood draw.

The officer testified that he relied solely on the statute, Texas Transportation Code 724.012, for authority to order the draw against Bonsignore’s will. Pleading guilty to the charges, the trial court issued Bonsignore a two-year sentence. Bonsignore appealed, arguing that his motion to suppress the evidence should have been ruled upon because the blood draw was taken without his consent and without a search warrant, violating the ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State argues that (1) Bonsignore’s blood-alcohol level would dissipate over time, (2) he was a repeat felony offender, and (3) the police department was small and understaffed, and that obtaining a warrant in this case would have been overly-burdensome for the officers that night.

Is "Dissipation" an Exigent Circumstance to Justify a Warrantless Search?

In the wake of the McNeely case, the Second Court of Appeals must determine whether Bonsignore’s blood draw was constitutional, and, whether the State may rely on an exigency “emergency circumstances” argument as an exception to the Fourth Amendment.

Texas Transportation Code

Section 724.012(b)(3)(B) states that blood or breath samples may be required to be taken when the suspect is arrested for DWI and he refuses to give the specimen voluntarily, so long as the suspect has two prior DWI convictions, “although [the code] does not expressly authorize taking the specimen without a warrant.” State v. Swan, 483, S.W.3d 760, 764 (Tex. App.—Fort Worth 2016, no pet.).

However, “the explicit refusal to submit to blood testing overrides the existence of any implied consent and that implied consent that has been withdrawn by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.” State v. Villarreal, 475 S.W.3d 784, 800.

Precedent Case Law: Missouri v. McNeely

“The natural metabolism of alcohol in the bloodstream [does not] present a per se exigent circumstance justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556, 1558.

The Second Court of Appeals Weighs In

The Second Court of Appeals agreed with Bonsignore. “The police may not create their own exigency to make a warrantless arrest or search.” Parker v. State, 206 S.W.3d 593, 598 (Tex. Crim. App. 2006). “Exigent circumstances do not meet Fourth Amendment standards if [law enforcement] deliberately creates the [circumstances].” Id.

Here, the Court held, law enforcement knew that it was not a “No Refusal Weekend” in Texas. Further, the police department knew that it only had three officers on duty the entire night Bonsignore was arrested. In fact, understaffing the department was a typical occurrence. There was nothing out of the norm about the number of officers on duty that night. “Deliberately scheduling an insufficient number of patrol officers on an evening shift does not constitute an exigent circumstance.” State v. McClendon, NO. 02-15-00019-CR, 2016 WL 742018 (Tex. App.—Forth Worth, Feb. 25, 2016, no pet.).

Additionally, the department had a protocol for obtaining warrants, even in the absence of magistrates “on call.” Also, there was no earth-shattering emergency or problem that prevented the officers from making attempts to secure a warrant for Bonsignore’s search. The Court makes a point to highlight the efficiency of fax machines for the purposes of securing warrants, “thanks to the fax machine, [law enforcement] could …request a search warrant” and “thanks again to a fax machine…once [law enforcement] had the search warrant, [they] could fax it directly to a hospital instead of driving [the warrant] there.” The argument that the police department is small was unpersuasive for the Second Court of Appeals. For these reasons, the Second Court of Appeals reversed the trial court’s ruling, and remanded the case to the trial court for a new trial.