Volume 8, Issue 5
A Monthly Insight into the Prosecution of Impaired Driving
Inside this Issue
State v. Rodriguez
Driver Sent or Received 11 Texts in 11 Minutes Before Crash
Texas Blood Test Aims at Drunk Drivers
Missouri 'Sovereign Citizen' Loses DWI Trial in Northland
NJ Cop Arrested for DWI after DWI Class
Police Issue Gift Cards Instead of Tickets
New App Helps Determine BAC
Smith v. State, C-2010-1059
Decided Sept. 23, 2011 (Unpublished)
In Smith v. State, the defendant entered a plea of no contest to two (2) charges
of Enabling Sexual Abuse to a Minor Child and was sentenced to five (5) years
imprisonment with two (2) years suspended. Using the same defense counsel,
she filed a Motion to Withdraw Guilty Plea, which was denied.
On appeal, she raised an ineffective assistance of counsel claim, alleging her
counsel not only failed to explain the outcome of her plea (it was an 85%
crime), but also had a conflict in representing her at her Motion to Withdraw
Guilty Plea Hearing. The Court concurred, holding that although defense counsel admitted to not advising his client she was entering a plea to an 85% crime,
he did not call her to testify, or advocate her position at the plea hearing. The
Court concluded counsel simply could not have been effective at the withdrawal hearing without pointing out his ineffective assistance prior to and during the
plea hearing. The case was remanded to the district court for a hearing on the
Motion to Withdraw with conflict-free counsel.
Chance v. State, F-2010-1123
Decided September 23, 2011 (Unpublished)
The defendant was tried and convicted by a jury for First Degree Burglary AFC and Unlawful Possession of Drug Paraphernalia. He received
thirty (30) years to serve on the Burglary charge and one (1) year to serve on the Paraphernalia charge. The Court held there was error
where the pen packet and Judgment and Sentences introduced contained improper references regarding the pardon and parole system.
Combined with the prosecutor's argument that the information could be used to determine sentencing, resulted in prejudice to the defendant. Sentence was modified from thirty (30) years to twenty (20) years. The Court additionally noted that the jury was improperly instructed regarding the range of punishment for the Paraphernalia charge and it should not have been tried in a bifurcated proceeding. As a result, the Court modified the Paraphernalia charge to thirty (30) days in the county jail. Finally, restitution was ordered in error, without
having held a hearing to determine the proper amount. Therefore, the district court's restitution order was vacated and remanded to the
district court for a hearing to determine a reasonable restitution amount.
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S. Department of
Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.