“Not Having the Normal Use of Mental or Physical Faculties” in DWI Trials

November 10, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Chapter 49 of the Penal Code defines intoxication for the purposes of a Driving While Intoxicated (DWI) case three different ways.  A person is intoxicated if “they do not have the normal use of their mental faculties; do not have the normal use of their physical faculties; or have a blood alcohol concentration of 0.08 or greater…”

Not Having the Normal Use

Herein lies a classic struggle between prosecutor and defense attorney.  The term “normal use” is usually defined by the judge only to be a “normal non intoxicated person.”  That’s all the clarification a jury gets.  It’s as clear as mud.

What the prosecution will often attempt to do — as early as jury selection — is manipulate the definition of “normal” to make it as slight a burden as possible.  The less drunk they have to prove the defendant is, the better their chance of winning at trial.

Attempts at Changing the Definition of Intoxication at Trial

Prosecutors attempt to morph the phrase “normal use” in one of two ways.  They either paraphrase the definition or they give unrealistic examples.

“Not Normal…”

The first is they try to paraphrase “normal use” and in doing so often leave out the word “use.”  Instead, they say a person is intoxicated if “they are one step past normal,” or “not normal.”  They insist to the jury it is a very strict standard to protect the public and most jurors readily agree.  Until they learn the actual law anyway.

Your lawyer in a DWI trial must make sure the jury understands the actual law, not the paraphrased law.  Many things may not be functioning perfectly but still normally.  A bad knee might hurt — but a person can still walk, drive or even run normally.  An airplane can lose an engine yet still function normally.  These examples show how the word-play lessens what it means to be “intoxicated” under the law.

Difficult to Prove Examples

The second way prosecutors try to demonstrate intoxication is by making examples of simple functions such as slower judgment, someone being more talkative or less talkative because of alcohol.

The issue here isn’t so much of the “loss of normal use.”  The issue is these traits are equally consistent with innocence as they are guilt.  The jury should understand a person using slow judgment might be evidence of intoxication — but standing alone is a great way to convict an innocent person.

In Summation

A DWI Defense lawyer must understand focusing on the facts is unfortunately not enough.  It should be enough to win a case to prove a person only had 2 beers.  You can still lose, though, if the prosecution can convince a jury 1 beer gets you legally “intoxicated.”

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered to be legal advice.  For legal advice, please consult an attorney.

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What I Like About Defending DWI Cases Collin County

July 9, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Defending driving while intoxicated case presents a unique challenge to lawyers.  This is because long before entering the courtroom, you can detect a stiff headwind of resistance working against you which lasts the entire case.

You get the sense the legislature, lobbyists and victim advocacy groups, and even many jurors don’t stop to consider whether the police are right when they make an arrest.  Even the news media runs article after article about how if the courts and police were just meaner and tougher on these cases — they would somehow go away.  There is an unmistakable and heavy bias which reaches far beyond whether drunk driving is a problem — and assumes everyone suspected of DWI is guilty.

No one wants drunk drivers on the road.  Everyone’s heart breaks for victims of drunk drivers.  The vast majority of people respect and trust police which is one of the things that makes Collin County a great place to be.  But legislators, activist groups, and police are human.  By their very nature, groups with this degree of moral authority tend to make up the rules as they go along — and therein lies the potential for them to badly hurt innocent people in the name of the public good.

I enjoy the challenge of showing jurors that not everyone caught in the wide-cast-net of DWI is a drunk driver.  I enjoy showing the jury how the framers of the constitution knew the timeless attitudes of accusers, authority figures, and even society’s tendency to rush to judgment.  Most of all, I enjoy the challenge of winning cases where there is a steep up-hill climb with skeptical jurors, difficult police officers, and strict rules limiting our ability to defend the case.

Though I’m probably biased in favor of Collin County jurors, I enjoy trying cases in front of people that live in places like Allen, Plano, Frisco, McKinney and Richardson for the reason they are intelligent and open minded.  Without people even willing to listen — having a fair trial anywhere would be impossible.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are any communications confidential or privileged.

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Defending Intoxicated Assault and Intoxicated Manslaughter

April 12, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Defending intoxication assault or intoxication manslaughter is heavy lifting for lawyers and not just anyone can do it.

Like any other major criminal case, it requires attention to detail, the ability to compartmentalize the human components of the case, and the ability to thoroughly analyze the mountains of evidence as a baseline.

On top of that — a lawyer must have an advanced background in defending not only severe car accident cases requiring reconstruction; but more importantly defending intoxication charges which involve science ranging from chemistry to physiology, to pharmacology.

Intoxicated assault is governed by Texas Penal Code 49.07 and Intoxicated Manslaughter is under 49.08.  In those cases in Texas, the state must prove that the accused caused the serious bodily injury (intoxicated assault) or the death of a person (intoxicated manslaughter) by reason of that intoxication…

The language of those statutes seems very simple but in practice are highly complex.  The statue must show (1) intoxication as defined by Texas Penal Code Chapter 49; (2) and that but for the defendant’s intoxicated state — the injury or accident would not have occurred.  This normally implies that the accident was the fault of the intoxicated driver.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any circumstance you should contact an attorney directly.  Communications sent through this forum are not considered privileged or confidential nor do they create an attorney-client relationship.

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The “Public Place” Requirement of DWI Law — How it Really Doesn’t Matter Anymore

November 18, 2011

By  Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code 49.04(a) is Texas’ DWI law and states, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”

“Public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.  Tex.Pen.C. 1.07(40).

Obviously when the Texas legislature wrote the drunk driving law, for whatever reason only they truly know, they wanted to omit places that weren’t public… i.e. private places.  My guess (and that’s all it is) is that the legislature probably wanted to preserve Texan’s ability to consume alcohol while engaging in sport such as hunting or fishing on private property.

The Courts of Appeals have essentially written the “public place” requirement out of the law over time.  Today, the language of Tex.Pen.C. 1.07(40) is virtually meaningless.  A handful of legal opinions over the years address the issue of whether a place is “public” for the purposes of DWI.

A 2009 unpublished opinion, Campos v. State, 2009 Tex. App. LEXIS 7487 (Tex.App.– Austin, 2009), sums up how this provision has been effectively eliminated.  I’ve included Campos’ internal citations so you can see how the logic has been patched together over time:

“…Texas courts have held that even areas that strictly limit public access may qualify as public places. When determining whether an area is a public place, the relevant inquiry is whether the public or a substantial group of the public has access to the place in question. Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994); Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.–Fort Worth 2003, no pet.). The level of access does not need to be complete or entirely unrestricted, provided members of the public could gain access under the right set of circumstances. See State v. Gerstenkorn, 239 S.W.3d 357, 359 (Tex. App.–San Antonio 2007, no pet.) (holding that gated community “with a security guard and limited access” was public place); Woodruff, 899 S.W.2d at 445 (holding that street in Air Force base was public place). Indeed, “[a]uthority exists for the proposition that ‘if the public has any access to the place in question, it is public.'” Woodruff, 899 S.W.2d at 445-46 (quoting 6 Michael B. Charlton, Texas Criminal Law ß 1.6 (Texas Practice 1994)…” Emphasis added.

For our non-legal experts at home, let’s dissect this just a bit more.  You can see there have been several cases which have addressed the issue.  And in each case what has happened is that the Courts of appeal have nit-picked the facts to declare places where the defendant was arrested as “public places.”  So we have a gated community is now a public place (Woodruff), then an Air Force base is a public place (Gerstenkorn)… and on and on…  Finally the Court declares, that anywhere a member of the public could gain access under the right set of circumstances (a ridiculously over-broad and subjective phrase), can be a public place.

Under the right set of circumstances… Really? … let’s think about that for a minute.  If we flip the phrase around and ask ourselves what types of places are private… are there any places that even qualify under that standard?

— A 200 acre fenced-in deer lease?  It’ a public place because ‘under the right set of circumstances’ a member of the public could gain access by being invited on or getting lost;

— A fenced in golf course?  It’s a public place because ‘under the right set of circumstances’ someone could pay money and operate a motorized golf cart (or an employee drive riding lawnmower);

— The star on the middle of the field at Cowboy’s Stadium in Arlington?  Well, ‘under the right set of circumstances’ a member of the public could drive a car with Roger Staubach in the back waving to the crowd… so now even that’s a “public place.”

Didn’t the definition under 1.07(40) say a public place is a place where “a substantial group of the public.. has access?”

Presto chango!  Through slight-of-hand, a “substantial group” of the public changed into “any” member of the public… and all in the name of public safety and law enforcement.  So, in summation, there isn’t a place anywhere in the State of Texas that a court can’t declare “public” if the DWI facts make them mad enough regardless of the wording of the Texas Penal Code.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any issue, you should contact an attorney directly.  Contacting attorney through this blog does not create an attorney-client relationship.  Information communicated to attorney through this blog is not confidential.

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Defending Blood Draws Versus Defending the Breath Test

November 16, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

There are many strategies to specifically attack either a breath or blood result, but today I’m going to compare blood and breath samples very generally.

Generally speaking — the most vulnerable aspects of either test is due to the degree that a human can either intentionally or negligently effect the outcome.

Jurors tend to have a bit of a natural skepticism against the science and technique regarding the breath test, but jurors unfortunately don’t scrutinize blood tests quite the same way.  On the other hand, the process for administering the breath test is ‘idiot proof’ whereas the procedure for taking, shipping and testing the blood is filled with human contact.

The Breath Test

The breath test is based on extracting the alveolar breath from one’s deep lungs.  That breath sample has to (1) come from the deep lung in the first place;  then (2) travel through the lungs, esophagus, and mouth, through a tube on the intoxylizer machine, and into a test chamber roughly the 1/3 the size of a coke can.  Pollutants which contain hydroxyl molecules at any place can corrupt the sample.  But, compared to the blood test, the breath test is scored right on the spot.  The operator of the breath test machine needs very little training and experience to administer the test — and they should not be able to affect the test.  If the operator makes a mistake, chances are that the machine will invalidate the result or that it will be revealed on the video of the test being taken.

Blood Draws

Challenging the chain of custody and the testing of blood can be very frustrating.  This is because the person drawing the blood, the people processing and sorting the blood samples at the lab, and the lab technicians simply don’t remember YOUR specific blood test.  Places where blood is drawn and the labs that test them are mills where they process 20, 30 or 100 different blood samples any given day.  But don’t worry — they’ll be sure to testify at trial that they never make mistakes when they draw the blood, put it on the carousel to be tested, or process it in the mail room.  The manufacturer of the blood vials puts in powdery chemicals into the vial to preserve the blood specimen.  Again, challenging the amount or quality of the chemicals can be like howling at the moon in front of a jury.

A recent opinion from the U.S. Supreme Court, Bullcoming v. New Mexico, at the very least allows defendants the opportunity to cross examine the personnel that test the blood.  In addition, it contains a far more in depth discussion of blood draws and is worth the read if you are interested.  Prior to Bullcoming, prosecutor’s were able to simply proffer a sheet of paper with the blood result which is impossible to cross-examine and a spokesperson to talk about the underlying science.  Jokingly, it is not much different that calling the receptionist at the lab who just tells the jury that in her experience “everyone is guilty.”

A Must if You’re Challenging Either Breath or Blood

Challenging the blood or the breath test, though, can only be done when the jury is told over and over that it is impossible to show where some scientific test went wrong — only that the result can’t possibly be right.  Jurors tend to have the expectation that someone can go back into a lab or into a breath test machine, recreate the exact circumstances, and prove exactly where a test went wrong.  But a good DWI trial lawyer needs to debunk that expectation and demonstrate to the jury that you can tell, for example, that a clock is wrong not by examining it by the finest timekeeper in switzerland — but because the clock says it’s night time and the sun is out.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice on any topic, you should consult an attorney directly.  Contacting the attorney through this blog does not create an attorney-client privilege and communications in response to this article are not subject to the attorney-client privilege.

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