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Ex Parte Anthony6/28/1996
Opinion
Mark Thomas Anthony appeals the trial court's denial of his pretrial writ of habeas corpus. In two points of error, appellant asserts the suspension of his driver's license for refusing to take a breath test bars a subsequent prosecution for driving while intoxicated (DWI) under both the United States and Texas Constitutions. Because we conclude the driver's license suspension and the DWI charge are not the "same offense" for double jeopardy purposes, we affirm the trial court's order.
BACKGROUND
Police arrested appellant on July 24, 1995 for DWI. At the time of his arrest, appellant refused the officer's request to submit to a breath test. As a result, appellant's driver's license was suspended for ninety days. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1.10, 1993 Tex. Gen. Laws 3586, 3703 (formerly Tex. Rev. Civ. Stat. Ann. art. 6701l-5, Section(s) 2(f)) (now codified at Tex. Transp. Code Ann. Section(s) 724.042- .043 (Vernon Pamph. 1996)).
On August 1, 1995, the grand jury indicted appellant for felony DWI that arose out of the same incident. Appellant filed a pretrial application for writ of habeas corpus, alleging that jeopardy barred the prosecution for DWI and requesting that the trial court dismiss the indictment. The trial court denied appellant's application.
DOUBLE JEOPARDY
1. United States ConstitutionIn the first point of error, appellant contends the trial court's denial of his application for writ of habeas corpus violated his rights under the Fifth Amendment to the United States Constitution. Specifically, appellant complains he cannot be tried for DWI because he was punished for the instant offense when his license was suspended. We disagree.
a. Applicable Law
The Fifth Amendment to the United States Constitution provides in pertinent part: " or shall any person be subject for the same offense to be twice placed in jeopardy of life or limb . . . ." U.S. Const. amend. V. This guarantee applies to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). This guarantee protects an accused from: (1) a second prosecution for the same offense following acquittal; (2) a second prosecution for the same offense following conviction; and (3) multiple punishments for the same offense. United States v. Dixon, 113 S. Ct. 2849, 2855 (1993) (citing North Carolina v. Pearce, 395 U.S. 711 (1969)).
To determine whether a prosecution violates the protection against multiple punishments for the same offense, we apply the same-elements test of Blockburger v. United States, 284 U.S. 299 (1932). Under the Blockburger same-elements test, the court examines the statutes defining the offenses, and if each statute requires proof of an additional fact that the other does not, then the two offenses are not the same offense. Blockburger, 284 U.S. at 304.
To suspend a driver's license for failure to give a specimen, the State must establish in an administrative hearing that:
(1) probable cause existed that such person was driving or in actual physical control of a motor vehicle in a public place while intoxicated,
(2) the person was placed under arrest by the officer and was offered an opportunity to give a specimen under the provisions of this Act, and (3) such person refused to give a specimen upon request of the officer. Act of May 29, 1993, 73rd Leg., R.S., ch. 900, Section(s) 1.10, 1993 Tex. Gen. Laws 3586, 3703 (formerly section 2(f) of article 6701l-5 of the Texas Revised Civil Statutes).
To obtain a conviction for DWI, the State must establish at trial that:
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