Thursday, June 16, 2011

More thoughts on HB 1199

Yesterday I wrote about HB 1199 which would make it a Class A misdemeanor in Texas to have an alcohol concentration of 0.15 or higher at the time of a breath or blood test. There were a couple of additional points I wanted to make in regards to this ill-conceived piece of legislation.

First, did the authors of the bill, Rep. Pete Gallego (D-Alpine) and Rep. Trey Martinez Fischer (D-San Antonio), give any consideration as to how the new law would be enforced? Does this bill mean that any DWI case in which there was a breath or blood test over 0.15 is to be filed as a Class A misdemeanor? Or does it mean that the high test is an enhancement for punishment? Does it mean that the jury must make an affirmative finding that the defendant's alcohol concentration was over 0.15?

On the other hand, maybe the bill will provide ammunition for those who would require a jury not only to be unanimous as to whether a motorist was intoxicated, but also unanimous as to the theory of intoxication. Would defense attorneys look to argue the accuracy of the breath test machine not only on low test cases but also on cases in which the breath test was 0.15 or higher?

Second, the bill provides yet another disincentive for a motorist to submit to a breath or blood test. Unless, of course, the next step is to make breath or blood tests mandatory in drunk driving cases. And what of the disparity in sentencing? You may have a case with particularly bad facts in which a motorist refused to submit to a test and is charged with a Class B misdemeanor while another case may have decent facts but the motorists blew over a 0.15 and is charged with a Class A. Where's the justice in that scenario? The second driver did just what the state wanted him to do and he gets the worst of it.

HB 1199 is a bad piece of legislation that leaves us with more questions than answers.

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