Does Accident + Felony DWI = Deadly Weapon

In Couthren v. State, the Texas Court of Criminal Appeals held a person accused of felony driving while intoxicated may only be charged with using a  motor vehicle as a deadly weapon if the manner in which the defendant was driving could cause death or serious bodily injury. In this case, even though it involved an auto-pedestrian accident, the Court concluded that there was no evidence that the accident was caused by the defendant's reckless or dangerous driving.

In Texas, a person arrested for DWI who has two or more prior convictions for DWI will be charged with DWI – Felony Repetition, a third degree felony. 

Deadly Weapon Enhancements in DWIs

In any felony where it is show that the defendant used or exhibited a deadly weapon, the trial court shall enter a deadly weapon finding in the judgment. A motor vehicle is not a deadly weapon, per se, but can be if it is used in a manner that is capable of causing death or serious bodily injury.

DWI Accident - The Background

Reckless or Dangerous - Basis for Deadly Weapon Finding

A finding that the vehicle was used in a manner that is capable of causing death or serious bodily injury is dependent on whether the defendant’s driving was reckless or dangerous. Reckless or dangerous driving has been demonstrated by speeding, disregarding traffic signs, failing to maintain control of vehicle, fishtailing, causing property damage with the vehicle, driving on the wrong side of the road, almost colliding with another vehicle, and failing to yield to traffic. This is a fact-sensitive inquiry based upon specific testimony and the record of evidence. Furthermore, the fact of a collision and intoxication alone will not support finding of a motor vehicle as a deadly weapon.

Because this analysis is fact-sensitive, the court looked at two cases where the use of a motor vehicle in a DWI case satisfied the deadly weapon component to determine if the threshold was met in this case.

In Sierra v. State, there was no witness testimony regarding the accident, however the police conducted a thorough on-scene investigation and could determine the speed at which the vehicle was going. The Court concluded that, under these facts, a jury could have reasonably found that the defendant was speeding and failed to maintain control of his vehicle.

In Moore v. State, the defendant rear-ended a vehicle causing it slam into another vehicle in a major intersection. In this case there was evidence both that the vehicle was going fast enough to cause this double collision, as well as evidence that the defendant either failed to apply the brakes, or applied them too late to avoid impact. Here, too, the Court  found that the defendant was using his vehicle in a manner capable of causing serious injury or death.

Finally, the court, in a footnote, cites Tyra v. State, where the evidence showed that the defendant was too drunk to control the vehicle and the inability to control the vehicle demonstrated recklessness. In all three cases, there existed enough evidence to demonstrate the defendant’s intoxication caused the defendant to not be in control thereby making the vehicle a deadly weapon.

The set of facts in Couthren v. State do not present enough evidence to issue a finding that the motor vehicle was a deadly weapon. On June 16, 2012, around 2:00 a.m. the defendant was driving his vehicle on a frontage road. The defendant admitted to consuming alcohol earlier that afternoon. The victim was walking home on the right side of the road. He was leaving a bar and decided to walk because he had two DWI charges and did not want a third. As the defendant was driving, the victim stepped in front of the vehicle and hit his head on the windshield. The defendant got out of the car to inspect the body, and noticed the victim was bloody and unconscious. There were no other witnesses present or any passing vehicles. The defendant decided to take the victim to the hospital, but in lieu of immediately driving to the hospital, the defendant drove to his house to exchange cars with his girlfriend where he became involved in an altercation. It was at this point the police were called and the defendant was arrested.

The Court of Appeals noted that they were unable to ascertain the manner in which the defendant was driving moments before the victim was hit. The only evidence present in the case was that the defendant admitted to drinking alcohol and further testified that he was driving roughly 30 miles per hour when he struck the victim. The officers testified that he appeared intoxicated, and was slurring his speech and swaying. They noted that the defendant did not drive to the hospital immediately, and that his vehicle’s windshield has a spiderweb of broken glass on the passenger’s side. Finally, they testified that it appeared that the victim was hit pretty hard. The court found this evidence did not meet the threshold of being reckless or dangerous. The only direct evidence was the defendant’s testimony that he was driving 30 miles per hour. The officers did not testify about the speed limit on the road, and did not conduct an investigation of brake marks or skid marks to determine the manner in which the defendant was driving. While the officers did say the victim looked to have been hit hard, it does not demonstrate the inference of speeding like in the Moore case. Thus, the court was unable to determine the motor vehicle was a deadly weapon in this case.

As an ancillary matter, the State also alleged that the defendant’s decision not to take the victim immediately to the hospital and to drive with the windshield broken was evidence of the reckless or dangerous standard. The court quickly dispels this notion by arguing a decision to drive may be reckless but that does not make automatically the vehicle a deadly weapon. Furthermore they noted that while the passenger side of the windshield was cracked, the officers noted the driver’s side appeared to be clear enough for a person to have enough visibility to drive. The court ultimately dispensed with their second argument and found the defendant did not use a deadly weapon in his DWI charge.

When do the police need a warrant to search blood in intoxication cases?

The Court of Criminal Appeals handed down State v. Martinez, answering whether the State’s testing of blood previously drawn by hospital personnel for medical purposes constitutes a search under the Fourth Amendment. 

In both Martinez and Comeaux, the defendants were taken to a hospital for treatment following a traffic accident and blood was drawn by hospital personnel for medical purposes but was not tested for blood-alcohol content by the hospital. However, because it was a plurality opinion, Comeaux did not establish binding precedent and left open the question of whether blood-alcohol testing by the State constituted a search.

No expectation of privacy in the results of a blood test performed by hospital personnel.

The State in Martinez argued that State v. Hardy and State v. Huse held an individual does not have an expectation of privacy in vials of blood protected by the Fourth Amendment. In both Hardy and Huse, the State obtained grand jury subpoenas for the results of blood-alcohol tests conducted by hospital personnel. In Hardy, the Court of Criminal Appeals addressed whether the police need a warrant to obtain the results of a blood test when the blood is drawn and tested by hospital personnel for medical diagnosis. In answering the question, the Court discussed that an individual has potentially three separate privacy interests in his or her blood: the interest against the physical intrusion into the body to draw blood, the interest in exercising control over and the testing of the blood, and the interest in the results of the test.

At issue in Hardy was the interest in the results of the blood test. Reasoning that any interest society has in protecting the privacy of medical records was not sufficiently strong to require the Fourth Amendment protection of blood-alcohol testing results, the Court held that a warrant is not required to obtain the results of blood-alcohol testing performed by a hospital for medical diagnosis purposes.

Following the decision in Hardy, U.S. Congress passed the Health Insurance Portability and Accountability Act (HIPAA) designed to protect an individual’s privacy interest in medical information. In State v. Huse, the Court of Criminal Appeals took up the question of whether Hardy was still valid after the passing of HIPAA. Recognizing that HIPAA supports the claim that society recognizes a legitimate expectation of privacy in medical records in general, the Court determined that the expectation of privacy in medical records in general was not at issue because of HIPAA’s exception for information obtained pursuant to a grand jury subpoena.

Both Hardy and Huse explicitly established that an individual has no privacy interest in the results of a blood-alcohol content test but declined to determine whether a privacy interest in the exercise of control over and testing of a blood sample existed. In fact, Hardy only muddied the waters. Citing a United States Supreme Court case, Skinner v. Railway Labor Executives’ Association, the Court in Hardy noted that a blood draw instigated by the State for the purposes of testing for blood-alcohol content constitutes two discrete searches: the physical intrusion into the body and the subsequent analysis of the blood. However, while explicitly recognizing that blood analysis by the State itself is an invasion of a reasonable expectation of privacy, the Court refused to affirm the holding in Comeaux stating there “may” be a separate privacy interest in exercising control over and the testing of a drawn blood sample. Thus, the question at issue in Martinez was left largely unanswered by Hardy and Huse: to what extent does an individual have an expectation of privacy in the exercise of control over and testing over blood already drawn?

An individual has a reasonable expectation of privacy in control over and testing of a blood sample.

Under the Fourth Amendment, a search is unreasonable if it invades a reasonable expectation of privacy. A reasonable expectation of privacy includes both an individual’s subjective expectation of privacy and society’s recognition of the expectation of privacy as reasonable or legitimate. An individual’s subjective expectation of privacy is dependent on the facts of the case. However, citing Comeaux, the Court provided some guidance by noting that a person does not assume that a blood sample given for the purpose of private testing will be given to the State or for a purpose other than that intended.

 The Court went further to hold that an individual has an interest in the “private facts” in blood because blood contains information about an individual beyond the person’s intoxication and that the chemical analysis of the blood is an invasion of the individual’s privacy interest. Blood-alcohol testing was compared to a search of a cell phone, which requires a warrant due to the privacy concerns implicated by the information stored on the phone. This holding is consistent with the statement in Huse that HIPAA represents society’s expectation that private medical information should be kept free from discovery and disclosure. It is also consistent with the Supreme Court’s statement in Skinner that the chemical analysis of a blood sample following a blood draw constitutes a separate and distinct invasion of privacy. Given the private facts found in blood, the Court explicitly held that an individual has “an expectation of privacy in blood that is drawn for medical purposes.” 

The bottom line is that the law is now much clearer about what privacy interests in an individual’s blood are subject to the Fourth Amendment. The Fourth Amendment is not implicated if the State seeks to obtain the results of a blood test performed by hospital personnel for medical diagnosis purposes. On the other hand, a warrant is required to satisfy the Fourth Amendment if the State seeks to draw and test an individual’s blood. Now, after Martinez, if the State desires to test the blood-alcohol content of blood previously drawn by hospital personnel for medical diagnosis, the Fourth Amendment requires a warrant.

Timbs v. Indiana: SCOTUS Boot on the Throat of Policing for Profit?

The Supreme Court, in Timbs v. Indiana, recently handed down a unanimous decision that may be the death knell for "policing by profit," limiting both police and prosecutors across the country. The Court held that the Eighth Amendment protection against excessive fines, including forfeiture of property, applies to states. This holding will limit asset forfeiture in cases where the forfeiture is based on an instrumentality theory and the asset is “grossly disproportional to the gravity of the offense.”

In the underlying case, Tyson Timbs pled guilty in Indiana state court for dealing a controlled substance and conspiracy to commit theft. He was sentenced to one year of home detention, five years of probation, and was required to pay fees of $1,203. The maximum fine that could be imposed was $10,000.

When he was arrested, the police seized his Land Rover SUV, which was valued at $42,000. He paid for the vehicle with money he received from an insurance policy when his father died. The State hired a private law firm to engage in a civil suit for forfeiture of the vehicle. Timbs’ principle argument was that the value of the asset seized was grossly disproportional to the gravity of the offense, and thus violates the Eighth Amendment of the Constitution. The ultimate question for the court was whether the Eighth Amendment Excessive Fines Clause was incorporated under the Fourteenth Amendment to apply to state action as well as federal action. 

The Excessive Fines Clause and the Incorporation Doctrine

The Incorporation Doctrine articulates a principal that the fundamental rights enumerated in the Bill of Rights are incorporated to provide protection from state action as well as federal action. The Bill of Rights, in its inception, was promulgated as a safety valve from the federal government. After the Civil War, Congress ratified the Fourteenth Amendment containing language akin to the Substantive Due Process Clause in the Fifth Amendment, which protects individuals from the federal government. The Fourteenth Amendment’s subtle, yet significant, difference was that it ensured due process against state action.

Over the ensuing years, and through numerous precedential cases, the Supreme Court began to articulate a test for whether a provision of the Bill of Rights was incorporated. Ultimately the test became whether the clause was so fundamental to our scheme of ordered liberty that it ought to have protection from state action.

In determining the fundamental nature of the right in question, the Supreme Court often looks to the history and tradition of the right in question.

Until the Supreme Court case in Timbs, the clause regarding excessive fines had not previously been incorporated to provide protection against the states. This new ruling now advances that protection against excessive fines from the government is so fundamental to ordered liberty that it protects individuals from both federal and state action.

Limits on Asset Forfeiture

This section will serve as a primer for understanding the basics of asset forfeiture. For more information on the subject, click here. Asset forfeiture is the act of the government seizing assets thought to be connected with a crime. Proceeds are the ill-gotten gains of a crime. Instrumentalities, on the other hand, includes anything used to perpetuate the crime.

 If an asset was purchased from the proceeds of a crime, or if it was used as an instrumentality in perpetuating the crime, it has the capacity to be seized by the government.

In cases where the assets are purchased from the proceeds of the crime, while an excessive fines analysis occurs, the assets are directly correlated to the gravity of the offense because the proceeds stem from the offense itself. Therefore, it is seldom, if ever, that assets from proceeds are considered excessive pursuant to the Eighth Amendment.

Assets seized as an instrumentality of the offense, however, are judged on a much different basis. This proportionality analysis occurs by taking the pecuniary value of the asset seized and comparing it to the maximum fine that could statutorily be imposed for committing the offense. Thus, if the value of the asset or property is within the monetary value of the maximum fine that could be imposed, the courts will presume that the fine is not excessive. Even when the value of the property is above the value of the maximum fine, as long as the numbers are relatively close, the courts will not declare the forfeiture excessive, and thus unconstitutional.

The Court's Rationale in Timbs

The Court ultimately held that there was overwhelming evidence to find the Excessive Fines Clause to be fundamental to our scheme of ordered liberty. Because of this holding, the seizure of Tyson Timbs’ land rover, being grossly disproportional to the gravity of the offense, was unconstitutional.

Case analytics are big business in the world of civil litigation. They help lawyers understand what cases are worth, what motions a given judge is most likely to grant, and what juries are doing in a specific jurisdiction. While each case is unique, this data helps shape litigation strategy, manage client expectation, and even provide insight into opposing counsel.

This type of analysis is largely absent in the criminal arena, although there are some promising efforts under way at the federal level. We decided to take a deep dive into case analytics using Tarrant County as an example. We relied on information obtained through Public Information Act requests and publicly available sources including the Texas Indigent Defense Commission and the Office of Court Administration.

Our models can be easily applied to any county in the state, as well as statewide. Some of the information, such as how successful individual prosecutors have been, has been reserved for members of the local criminal bar association.

We analyzed 203,866 criminal cases filed in Tarrant County over the last five years, from January 2014 through December 2018. Here’s what we learned.

Tarrant County’s Population is up 6%

As a starting point, we looked at the change in population in Tarrant County. More than 2.054 million people live in Tarrant County – an increase of 6 percent since 2014. The most populous city in Tarrant County is Fort Worth, which is the county seat and also where the Tim Curry Criminal Justice Center is located.