Tricky situation

[buckhunt122]

Ok let me explain my situation: I got a dwi in texas in august of 2010, It was a horribly stupid thing to do. I got pulled over for not using my turn signal at a stop sign and proceded to blow pretty high at jail. I still have not been to court on this. I landed an internship in california, and am out here for the summer. I got a dui my first night here. (For an unsignaled lane change on a service road). Please dont lecture me on this, this situation has caused to seek help from a shrink as dealing with the stress has been impossible.

Long story short My california dwi is going to go to court and be resolved BEFORE my texas one. So my second arrest will go down as my first conviction. Will they convert my "first offense" texas dwi to a second offense even though it happend before the california one?

Also, I am going to lose my drivers license in california on july 28th of this month, How long will it take texas to find out about it (I move back on august 12th) and if they do remove my license, will I be able to get a restricted license in texas for a crime that happened elsewhere?

 

[LillianX]

What state issued your drivers license?

 

[FlyingRon]

Usually you need to be convicted (or at least been to court) on the first offense prior to the commission of the second offense for it to count as the second.

 

[ERAUPIKE]

Ok let me explain my situation: I got a dwi in texas in august of 2010, It was a horribly stupid thing to do. I got pulled over for not using my turn signal at a stop sign and proceded to blow pretty high at jail. I still have not been to court on this. I landed an internship in california, and am out here for the summer. I got a dui my first night here. (For an unsignaled lane change on a service road). Please dont lecture me on this, this situation has caused to seek help from a shrink as dealing with the stress has been impossible.

Long story short My california dwi is going to go to court and be resolved BEFORE my texas one. So my second arrest will go down as my first conviction. Will they convert my "first offense" texas dwi to a second offense even though it happend before the california one?

Also, I am going to lose my drivers license in california on july 28th of this month, How long will it take texas to find out about it (I move back on august 12th) and if they do remove my license, will I be able to get a restricted license in texas for a crime that happened elsewhere?

Two DUI's, you might want to rethink your career path, those are going to follow you for longer than you care to imagine. Yes, your Texas DUI will become a second conviction if you are convicted in California prior to your trial in Texas. Texas will find out immediately, and when you are pulled over again in Texas you can add Driving w/ Lic Susp (w/Knowledge) to your charges as well.

Perhaps you should seek help for your drinking problem as well.

 

[tranquility]

While both Texas and California are members of the Secure Communities strategy and the Interstate Driver's Compact where law enforcement information on things like DUI is shared, the courts are always slow in inputting information into it and we need to look at TX DA process to know.

Since a second offense will have an element the DA must prove that the suspect had committed a first offense, in pre-trial preparation the DA will run a search for prior convictions. If the conviction happens after the search, but before trial, I find it unlikely the TX DA will find out about it in a timely fashion.

As to if the timing is the commission or the conviction of the prior, I have no idea. I would bet it relates to the commission for a number of statutory construction reasons, but am not sure.

The only difference it might make is in the deal the OP might make in TX. He might plead guilty quickly to a reckless or a DUI in the hope of not getting a second. I don't think the OP is winning that one anyway, so I'd just plead and get it done and not worry about possible additional elements.

Info edit:
The usual reasoning behind such increased penalties is that the driver will have been notified by the court the dangers of driving under the influence. The additional penalties are because of the increased implied intent (DUI is a general intent crime and intent is not an element.) to put the community at risk. While we all know it is dangerous, there is something special in a person being individually warned by a judge and other hoops to jump through of alcohol counseling and the like to inferring what the person knew.

 

[buckhunt122]

Two DUI's, you might want to rethink your career path, those are going to follow you for longer than you care to imagine. Yes, your Texas DUI will become a second conviction if you are convicted in California prior to your trial in Texas. Texas will find out immediately, and when you are pulled over again in Texas you can add Driving w/ Lic Susp (w/Knowledge) to your charges as well.

Perhaps you should seek help for your drinking problem as well.

1.) I drink less than 10 times a year, does that mean I have an alcohol problem relative to my situation? It looks like it. Does that mean I have a problem they offer treatment for? No.
2.) I understand this will haunt me, I am parentless with almost 100,000 in student loans. These two mistakes almost make my life without point. I don't know if you read the part about me seeking help for the problems in my life, but what kind of human gets off degrading me like you did? Do you have no soul?
3.) I have talked to three Texas attorneys all of which told me me my punishment will be stricter, but they CANNOT make it 2nd offense.
4.) you failed to answer my questions, gave me false information, and decided to kick me while I was down while you were at it. You néed the lord my good friend.

To everyone else thank you for your help.

 

[tranquility]

1.) I drink less than 10 times a year, does that mean I have an alcohol problem relative to my situation? It looks like it.

Agreed. Anytime drug (including alcohol) use cause substantial interference (Social, legal, personal, professional) with life's normal functions, there is a problem. Being arrested is certainly contemplated by the phrase and is included by it.

Does that mean I have a problem they offer treatment for? No.

There are many treatments and strategies for people with a problem with alcohol. There are places to go.

2.) I understand this will haunt me, I am parentless with almost 100,000 in student loans. These two mistakes almost make my life without point. I don't know if you read the part about me seeking help for the problems in my life, but what kind of human gets off degrading me like you did? Do you have no soul?

Um...I'm not sure what you're talking about as there seemed little degrading going on, but you willingly chose to put society at risk twice in a short time. It is highly unlikely those were the only times you drove drunk. It is estimated that for each time a person is arrested for DUI, there are a hundred prior events of similar crimes done by the person which were not caught. Maybe not in you, but generally. How should I treat someone who willingly risks my life so he can get his car home after drinking.

3.) I have talked to three Texas attorneys all of which told me me my punishment will be stricter, but they CANNOT make it 2nd offense.

That makes sense as the enhancement is not of any rational use here beyond punishment and does not have a good predicate of changing behavior or dealing with long-term choices.

 

[ERAUPIKE]

1.) I drink less than 10 times a year, does that mean I have an alcohol problem relative to my situation? It looks like it. Does that mean I have a problem they offer treatment for? No.

Will it be your third DUI in as many that helps you realize that you have a problem with alcohol?

2.) I understand this will haunt me, I am parentless with almost 100,000 in student loans. These two mistakes almost make my life without point. I don't know if you read the part about me seeking help for the problems in my life, but what kind of human gets off degrading me like you did? Do you have no soul?

How did I degrade you? I offered you some advice, this is freeadvice.com. I thought that maybe you didn't understand the impact a DUI will have on your life, you know since you have two now. It is obvious that you don't want to take responsibility for you actions. You didn't get DUI's because you didn't use a turn signal, you got them for driving drunk.

3.) I have talked to three Texas attorneys all of which told me me my punishment will be stricter, but they CANNOT make it 2nd offense.

You talked to three attorneys in the past 12 hours, impressive. You better hope these "attorneys" are right. Why did you call three? Were you not satisfied with the first ones answer? I think you may be engaging in some hyperbole here.

4.) you failed to answer my questions, gave me false information, and decided to kick me while I was down while you were at it. You néed the lord my good friend.

I answered your questions, you just don't like the answer. I'm sorry that you feel like everyone should treat the repeat offender with care and sensitivity. Personally, I think one DUI is a stupid mistake, two DUI's is just plain stupid.

 

[tranquility]

I answered your questions, you just don't like the answer.

No. I think the OP was referring to:

Yes, your Texas DUI will become a second conviction if you are convicted in California prior to your trial in Texas.

Do you have a reason for saying this?

I don't see it in a quick case search and is not correct by my theories of statutory construction. It has a few fairness and logical problems when you look closely at it too.

It's easy to tell the OP the reason he is not accepting something is because he doesn't like the answer. I'd say the OP's main question is answered by ERAUPIKE's response. It's just that I agree with the OP, that answer is wrong.

Since I don't have a case cite, my mind is willing to be changed. But, it will require something beyond someone just saying something on the interwebs.

 

[ERAUPIKE]

No. I think the OP was referring to:
Do you have a reason for saying this?

I don't see it in a quick case search and is not correct by my theories of statutory construction. It has a few fairness and logical problems when you look closely at it too.

It's easy to tell the OP the reason he is not accepting something is because he doesn't like the answer. I'd say the OP's main question is answered by ERAUPIKE's response. It's just that I agree with the OP, that answer is wrong.

Since I don't have a case cite, my mind is willing to be changed. But, it will require something beyond someone just saying something on the interwebs.

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) 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.

Sec. 49.09. ENHANCED OFFENSES AND PENALTIES. (a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicatedan offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.

Glad you have an open mind. The charge reamins the same, DUI 49.04. The change comes in the penalty phase where the punishment becomes more severe or enhanced. There are no real statutory changes.

Please point out these flaws, outside of the letter of the law, you claim to have seen. I'd like to further understand why you felt to declare me wrong without much of an explanation. I guess it is probably as easy to do that as it was for me to tell the multiple offender that he didn't like the correct answers.

 

[tranquility]

Glad you have an open mind. The charge reamins the same, DUI 49.04. The change comes in the penalty phase where the punishment becomes more severe or enhanced. There are no real statutory changes.

Please point out these flaws, outside of the letter of the law, you claim to have seen. I'd like to further understand why you felt to declare me wrong without much of an explanation. I guess it is probably as easy to do that as it was for me to tell the multiple offender that he didn't like the correct answers.

Nope. You interpret the statute incorrectly in one way (regarding penalty phase) and possibly incorrectly (regarding timing issues) in another.

The "enhancement" is not done in the penalty phase as the prosecution has things it must prove in it's case in chief. (See Renshaw v. State, 981 SW 2d 464)

This argument does not survive close examination. This court has previously held that prior DWI convictions alleged to elevate a primary offense to a felony are jurisdictional and not purely enhancement paragraphs.[8] Prior misdemeanor DWI's are part of the proof at the guilt/innocence stage for a felony DWI prosecution.[9] In order, therefore, to place a defendant in the category necessary to permit the State to prosecute him for felony DWI, the State must prove the existence of two prior convictions for DWI and that the crimes were committed within ten years of the crime at bar. Accordingly, in order to successfully prosecute the crime,

the State must provide proof not that the defendant is a felon, but that he was convicted of a particular type of crime on two occasions.

In the present case, the State had the burden of showing two prior DWI convictions as a part of the case-in-chief.[10]

The law was changed in 2005 and removed the 10 year limitation, but that change would not make the point different. The priors must be alleged in the indictment in order for the court to have jurisdiction for the crime.

In Gibson v. State, 995 SW 2d 693, the law at the time was written to require two prior convictions for the felony DWI. The dissent wrote:

Both the plain language and the legislative history indicate that the focus of § 49.09(b) is not upon the number of previous convictions related to DWI incidents, but on the number of previous DWI incidents resulting in conviction.

We also have the differing plain-language used later in the statute:

(h) This subsection applies only to a person convicted of a
second or subsequent offense relating to the operating of a motor
vehicle while intoxicated committed within five years of the date
on which the most recent preceding offense was committed.

There is a couple of cases with dicta mentioning the Legislature meant to change the law on this in 2005 because of the differing language used in the statute and the removal of (e). There are a number of cases that hold there is no change unless the Legislature specifically meant for the change. Statutory construction arguments have been had on both sides of the question. (Renshaw discusses this as well.) There is also a lot of casual discussion in the appellate cases which does not well distinguish between when an offense is committed and when the person is convicted of it. Most of that casual discussion seems to be careless rather than trying to hold something.

This is a complex topic and will revolve around statutory interpretation. Even a quick search will point to many cases through the years where such meaning is important. I think the answer still is ephemeral. Those who would like to distinguish between the "textualist" (Like Scalia) and "original intent" (Like Roberts) judges would find the majority in Getts v. State, 155 SW 3d 153 fall under the textualist rubric by discussing:

Additionally, the State's argument regarding legislative intent is unpersuasive. This statute originated in House Bill 314, which stated that a conviction for intoxication manslaughter could be used to enhance under § 49.09(e) no matter when it occurred. Later, the House Criminal Jurisprudence committee issued a substitute version of the bill which added the language now found in § 49.09(e)(2). That bill never got beyond the House, but its substance was found in House Bill 2250. The introduced version of HB 2250 contained the language concerning involuntary manslaughter. When the bill went to the Senate, the Senate Criminal Justice committee presented a substitute version that added the language now found in § 49.09(e)(2).

But the final version of HB 2250 made an additional change, one that seems minor but actually had a tremendous effect on the law. That version changed what was the pre-2001 version of § 49.09(e)(2) into what is now § 49.09(e)(3). The previous version said:

158*158 the person has not been convicted of an offense under [any intoxication-related penal provision] committed within 10 years before the date on which the offense for which the person is being tried was committed.

The version created by the enrolled version of HB 2250 says:

the person has not been convicted of an offense under [any intoxication-related penal provision] within 10 years of the latest date under Subdivision (2).

The State concedes that this change is significant. The previous version measured the time between the date the prior offense was committed and the date that the current offense was committed. The amended version measures the time between the date of the conviction for the prior offense and the date listed under Subdivision (2). And subdivision (2) refers to the latest date for a previous conviction, not the current offense. So this portion of the statute now measures a completely different time period than it did before.

This change was made in what Senator Moncrief described during a public hearing as "a floor amendment that merely removes the duplicative language and makes appropriate technical clean-ups, but no substantive changes." He then described it on the House floor in the following manner: "merely a legislative council clean-up, removes duplicative language, makes no substantive changes to the bill." The problem is, as the State acknowledges, he was wrong. Regardless of what he or the Legislative Council intended, the amendment was substantive.

Where does that leave a court attempting to interpret a statute? The State argues that we should follow the Legislature's intent regardless of what it wrote. But we interpret the Legislature's statutes, not its intentions. We must give effect to the Legislature's change in the law regardless of whether the change was intended.

 

[ERAUPIKE]

The State concedes that this change is significant. The previous version measured the time between the date the prior offense was committed and the date that the current offense was committed. The amended version measures the time between the date of the conviction for the prior offense and the date listed under Subdivision (2). And subdivision (2) refers to the latest date for a previous conviction, not the current offense. So this portion of the statute now measures a completely different time period than it did before.

Thanks for proving my point.

 

[buckhunt122]

it will be my 2nd dui not 3rd.


So tell me what does all that technical lingo mean for someone like me? The way i read it;they will both be "1st offenses" but the texas one (received first, convicted later) will be much more severe punishment?

With an attorney in texas what kind of punishment could i expect?

If i was able to get convicted by both at just about the same time, would my probation and drivers license suspension overlap? (would that be good for me?)

Thanks

 

[ERAUPIKE]

it will be my 2nd dui not 3rd.


So tell me what does all that technical lingo mean for someone like me? The way i read it;they will both be "1st offenses" but the texas one (received first, convicted later) will be much more severe punishment?

With an attorney in texas what kind of punishment could i expect?

If i was able to get convicted by both at just about the same time, would my probation and drivers license suspension overlap? (would that be good for me?)

Thanks

You mean the three attorneys you talked to yesterday didn't answer these questions for you?

 

[buckhunt122]

I have talked to many more than three atorneys. But I get differrent answers all of the time, and to be honest with you i dont feel like any attorney tells someone the entire "truth" in a free case review. I just want unbiased opinions without money being a contributing factor. I do rely heavily on what a site like this (neutral source) can tell me. I ALREADY have a texas attorney and he tells me they cannot try it as a second offense. But california attorneys tell me it will be, and more importantly they tell me to try and get the two convictions to be as close as possible to the same time (as long as california one comes first) and that my probations/suspended licenses will overlap. But my texas Attorney has never mentioned this at all.

Im sorry asking, I just wanted nuetral advice thats all