bond conditions in dwi cases - tmcec for tsc... · 49.04 - dwi 49.045 – dwi child passenger 49.05...

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BOND CONDITIONSIN DWI CASES

Presented by:

Matthew A. King Tarrant County Criminal Magistrate

• In December 1999, a young girl was hit by a car driven by a 17-year old male student driving home after drinking with his friends.

• She was caught in a burning car for 45 seconds and her body was heavily burnt

• After the accident Jacqueline needed over 40 operations

Alcohol-Impaired Driving

In 2010, Almost 30 people were killed everyday in alcohol-impaired crashes

One death every 48 minutes

Who is most at risk? Young people

At all levels of BAC, risk of crash greater in young people

www.cdc.gov/MotorVehicle safety/impaired

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In 2010 fatal crashes with BAC 0.08%

34% Ages 21- 24

30% Ages 25-34

25% Ages 35-44



“The rate of alcohol impairment among

drivers involved in fatal crashes was four

times higher at night than during the

day.”

NHTSA


“Drivers with a BAC level of .08 or higher

in fatal crashes were eight times more

likely to have a prior conviction for

driving while impaired than were drivers

with no alcohol”.


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BOND CONDITIONSCode of Crim. Proc. Art. 17.00

CCP 17.40- related to victim & safety

CCP 17.43- home curfew

CCP 17.44- home confinement and drug testing

CCP 17.441- ignition interlock

Code of Crim. Proc. Art. 17.40(Reasonable Condition)

Any reasonable condition that: is rationally related to securing the defendant’s

presence at trial; and,

Provides reasonable protection for the victim and community

Related to the safety of: Victim

Community

Code of Crim. Proc. Art. 17.40

Not necessary to relate directly to securing defendant’s presence in court

Sufficient if indirectly increases likelihood that defendant will appear

Rodriguez v. State (744 SW2d 361 (Tex. App.-Corpus Christi 1988, no pet)

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DWI Bond Conditions

MADD Requests Review Of Repeat Offender Fatality Case MADD 3/13/2009 12:00:00 AM Contact: Misty Moyse, MADD National, 469-420-4558 DALLAS—July 24, 2009 --MADD has sent the attached letter to

the Texas Commission on Judicial Conduct requesting the review of an important case by Judge Jerry Buckner of Parker County. It appears that the law was not followed in requiring an alcohol ignition interlock for an extremely high BAC conviction of an offender who later was the driver in a fatal crash, again with an extremely high BAC. It also appears that this case is not an isolated one, but rather part of a larger pattern of judges not requiring interlocks for high BAC and repeat offenders, as mandated by Texas law.

You plan to release a person charged with a misdemeanor offense on personal bond. You want to make sure he stays around his house and does not get in further trouble, particularly in the evening. What can you do?

a. As a magistrate you can order a peace officer to watch his house in the evenings for the next few nights, OR

b. You can issue a bail condition order that imposes a curfew on the defendant and requires him to wear an electronic monitoring device, OR

c. None of the above.

CCP 17.43- (Home curfew)

Home curfew

Only on personal bond

Electronic monitoring by magistrate designated agency

Costs paid for by defendant

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CCP 17.44- Home confinement and drug testing

Home confinement

Electronic monitoring

Weekly drug tests

Violations result in warrant

Grant funds available to counties for electronic monitoring programs

You are reviewing a case for magistration involving a boating while intoxicated. The criminal history indicates a previous conviction for driving while intoxicated. Is there a bail condition order that could or should apply?

1. YES

2. NO

You are reviewing a case for magistration person accused of operating the “Tilt –a-Whirl” at the local fair while intoxicated. The criminal history indicates a previous conviction for driving while intoxicated. Is there a bail condition order that could or should apply?

1. YES

2. NO

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You are reviewing a case for magistration involving a DWI offense. You are given information that they have pending a DWI but no convictions. Is there any bail condition order that could or should apply?

1. YES

2. NO

You are reviewing a case for magistration involving a DWI with Child a Passenger. The criminal history indicates a previous charge, for public intoxication. Is there any bail condition order that could or should apply?

1. YES

2. NO

You are reviewing a case for magistration involving a boating accident that resulted in a passenger losing their arm. The investigation indicates the operator of the boat was intoxicated. Is there any bail condition order that could or should apply?

1. YES2. NO

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CCP 17.441- Ignition Interlock

Shall require when defendant charged with a subsequent offense under the Penal Code for: 49.04 - DWI 49.045 – DWI Child Passenger 49.05 – Flying 49.06 – Boating 49.065- Amusement rideOR an offense under: 49.07- Intoxication assault 49.08 – Intoxication Manslaughter


NOTE: Penal Code 49.09 (h):

Does NOT apply

Interlock ordered if offense is within 5 years of most recent offense date

Applies to convictions only


Magistrate shall require on release that a defendant install a deep-lung breath analysis mechanism:

On the motor vehicle owed by or most regularly driven by the defendant, and

Defendant not operate any vehicle unless device installed

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CCP 17.441- Ignition InterlockAlso:

Installed at defendant’s expense within 30 days after release on bond

Magistrate can designate agency to verify installation and monitor

Agency can receive monthly fee not exceeding $10 for monitoring

CAUSE NUMBER 05-010001STATE OF TEXASVS.John DoeDate of Birth12/15/62

BAIL CONDITION ORDEROffense Charged: Driving While Intoxicated

The Court finds that the defendant is eligible for bail in this case in the amount of $ 3,500 that the additional conditions be imposed on said bail. Accordingly, It is ORDERED that in addition to any other conditions of bail imposed on the Defendant, that the Defendant abide by the following conditions of bail:

That the Defendant have installed on the motor vehicle owned by the Defendant or on the vehicle most regularly driven by the Defendant, a device that uses a deep lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and That the Defendant not operate any motor vehicle unless the vehicle is equipped with that device.

IT IS FURTHER ORDERED that the Defendant is required to have the device installed on the appropriate motor vehicle, at the Defendant’s expense before the 30th day after the date the Defendant is released on bond.Tarrant County Pretrial Release Agency is designated as the agency which will verify installation of the device and will monitor it. The Defendant is ordered to report to Tarrant County Pretrial Release Agency, 100 North Lamar, Fort Worth, within 3 business days after being released from jail, between the hours of 6:30 a.m. to 3:00 p.m.. The Defendant shall pay a monitoring fee of $10.00 per month to Tarrant County Pretrial Release Agency.

Signed on 11/18/05.

Stewart MilnerMagistrate, Municipal Court of Arlington

( ) Given in Spanish _____. Arlington, TexasDEFENDANT’S ACKNOWLEDGMENTOn the above-mentioned date, I received a copy of this Bail Condition Order.

__________________________Defendant

CCP 17.441- Ignition Interlock This is the appeal of Mr. Marlin Moore complaining about issues

surrounding the imposition of an ignition interlock device after his second Texas DWI offense.

EX PARTE: MARLIN MOORE No. 08-08-00259-CRTC No. 20080D03174Court Of AppealsEighth District Of TexasEl Paso, Texas.

Dated: August 25, 2010

Appeal from the 41st District Court of El Paso County, Texas.OPINION

DAVID WELLINGTON CHEW, C J.

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You are reviewing a case for magistration involving a first time charge of Driving While Intoxicated. The report indicates that suspect has been arrested several times for public intoxication. Is there a bail condition order that could or should apply?

1. YES

2. NO

You are reviewing a case for magistration involving a first time charge of Driving While Intoxicated. The Defendant is under 21 and had an extremely high breath test of .35%. Is there a bail condition order that could or should apply?

1. YES

2. NO


Installed on a boat?

Installed on a plane?

Installed on a motorcycle?

What if defendant doesn’t own a car?

What about company owed vehicles?

What if current case involves drugs only, no alcohol?

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BUT ALSO NOTE:

(b) The Magistrate may not require the installation of the device if the Magistrate finds that to require the device would not be in the best interest of justice.

When would it be not in the best interest of justice?

WHAT IS A MOTOR VEHICLE?

Penal Code: 49.01 (3): “motor vehicle” has the same meaning assigned by Sec. 32.34(a)

Penal Code 32.34(2): “Motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks,

But: Penal Code 30.01(3):

WHAT IS A MOTOR VEHICLE?

Penal Code 30.01(3): “Vehicle” means any device in, on, or by which a any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as “habitation”.

Penal Code 30.01: “Habitation” means a structure or vehicle that is adapted for the overnight accommodation of persons.

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Smart Start Interlock Report

by Judge Matthew A. King

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DWI Bond Conditions

Any Alternatives besides the Interlock?

Electronic monitoring by magistrate designated agency (GPS)

How about a “SCRAM- (secure continuous remote

alcohol monitoring)”?

In-home alcohol monitor

No alcohol 4 hours prior to driving

No radar detectors

Driving time limitations

DWI Bond Conditions

How about drivers under 21?

Should there be any special conditions?

Restricted driving times at night

Restrict certain locations (ie: bar, club)

SCRAM alcohol detection device

AA meetings

Alcohol counseling

No contact order with co-defendants, etc.

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REMEMBER!!(Any Reasonable Condition)

Any reasonable condition that: is rationally related to securing the defendant’s

presence at trial; and,

Provides reasonable protection for the victim and community

Related to the safety of: Victim

Community

“The great aim of education is not knowledge but action”

Herbert Spencer(1820-1903)

THANK YOU

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Trial court may modify bond conditions to require interlock, even if Magistrate did not do so

EX PARTE: MARLIN MOORE No. 08-08-00259-CR COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO August 25, 2010

After being arrested for driving while intoxicated (DWI), second offense, Defendant posted a $750 surety bond in accordance with a magistrate's order but no interlock was ordered as a condition of the bond. Defendant subsequently pleaded not guilty to the charge. Two years later, a county criminal court at law judge, after a hearing, entered a DWI second modification order on the bond, which allowed Defendant only to operate motor vehicles with an ignition interlock. The district court denied Defendant's request for a writ of habeas corpus.

The El Paso Court of Appeals, in another "Do Not Publish" opinion, affirmed the district court's refusal of a writ of habeas corpus holding that the county criminal court had the authority to modify the bond under Tex. Code Crim. Proc. Ann. art. 17.09, § 3.

TEX.CODE CRIM.PROC.ANN. art. 17.09, § 2 (Vernon Supp. 2009) provides that when a defendant has provided bail for his appearance in answering to a criminal charge, he shall not be required to post another bond in the course of the same criminal action. But there is an exception to that rule: Article 17.09, § 3 provides that if a judge or magistrate during the course of a defendant's criminal action that is pending finds that the original bond is defective, excessive or insufficient, any sureties are unacceptable, or for any other good and sufficient cause, he or she may order the defendant to be rearrested and require him to give another bond. The judge or magistrate must release the defendant from custody once he or she approves the given bond. See TEX.CODE CRIM.PROC.ANN. art. 17.09, § 3.

TEX.CODE CRIM.PROC.ANN. art. 17.441 sets out the conditions requiring motor vehicle ignition interlock. The statute mandates a magistrate to require on release that a defendant charged with an offense under Sections 49.04-49.06, 49.07, or 49.08 of the Penal Code, which cover DWI offenses, to install the interlock device onto his motor vehicle. A defendant may not operate any motor vehicle unless the vehicle is equipped with this device. The only exception to this mandate is where the magistrate finds that to require the installation "would not be in the best interest of justice." The magistrate must also require the defendant to install the device at the defendant's expense before the thirtieth day after the date the defendant is released on bond. See TEX.CODE CRIM.PROC.ANN. art 17.441.

Defendant posted the surety bond in July 2006, but almost two years later, in June 2008, the trial court entered an order to modify that bond. The trial court's order stated that it was done according to the requirements of Article 17.441. Because Defendant was charged with a DWI offense, Article 17.441 applies, and because the original bond

did not require Defendant to install the interlock device, the trial court found the bond to be defective under the express language of Article 17.09, § 3. The trial court complied fully with both Articles 17.09 and 17.441, the express statutory provisions that are relevant in the present case, and we cannot find that it abused its discretion.

In his second issue, Defendant contends that his due process rights were violated by requiring additional bond and conditions of release pursuant to Article 17.441(a)(1) without providing hearing and findings of those deficiencies as set out in Article 17.09, § 3.

Notwithstanding his contention, after he filed his objection to the interlock requirement on June 24, 2008, the trial court did hold a hearing on the requirement on June 25, 2008 and issued findings of fact and conclusions of law on July 10, 2008. The court held that Defendant presented no facts or circumstances to indicate the interlock installation would not be in the best interest of justice according to Article 17.441(b) and found that the requirement was in the best interest of justice. We find the trial court did not abuse its discretion.

In his remaining issues, Defendant contends: the fact that the original magistrate had released Defendant without the interlock requirement makes it an implied finding that the interlock requirement is not in the best interest of justice pursuant to Article 17.441(b); the subsequent trial judge violated Article 17.441(c) by requiring Defendant to install the interlock device because the original magistrate did not require him to do so before the thirtieth day after the date that he was released on bond; and the subsequent judge violated Defendant's due process rights by imposing new conditions of release in addition to the new bond without evidence of his failure to comply with the original terms and conditions of release or other good and sufficient reason.

TEX.R.APP.P. 33.1 requires a party to make a complaint to the trial court and for the trial court to rule on it before the issues in the complaint can be appealed. If a Defendant does not do so, he fails to preserve his complaint and the issues within it for appellate review. Because the record does not show that Defendant presented those complaints to the trial court below, we must conclude that he has waived them for purposes of this appeal.

bond conditions in dwi cases - tmcec for tsc... · 49.04 - dwi 49.045 – dwi child passenger 49.05...

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