Intoxication for PI is Higher than Intoxication for DWI

April 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

For the state to convict you of public intoxication, or PI for short, they must prove your level of intoxication is even higher than it would be for a DWI.

Here’s why:  Texas Penal Code 49.01(2) defines intoxicated (in relevant part) as, “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body…”

The above definition of 49.01(2) is the definition used for Driving While Intoxicated in 49.04.

Here’s the difference, though — PI is governed by 49.02 and that code specifically says, “a person commits an offense if the person appears in a pubic place while intoxicated to the degree that the person may endanger the person or another.”

In other words, not only does the person have to be intoxicated (defined by 49.01(2)), but they ALSO must be so to the degree they may “endanger the person or another.”

A simple way of putting it is that to be convicted of DWI, a person must have consumed alcohol to the extent they are dangerous behind the wheel of the car — to get a PI, they must be dangerous merely by being in public.  Obviously it makes sense that there is a stricter standard for operating a motor vehicle.

Public Intoxication cases are class c misdemeanors — meaning they’re lower offenses than DWI.  PI arrests are highly subjective and frankly often done for crowd control reasons or even in cases where the passenger in a car is highly intoxicated (and the driver is getting hooked-up for DWI).  Many officers know that their arrests may very well not end up in convictions, but they feel they are necessary anyway and are supported by the lower burdens of probable cause.

*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, you should directly consult an attorney.

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You Can Still Win a Breath Test Case with a Blood/ Alcohol Concentration over 0.08

April 22, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

You can be acquitted of DWI even if your breath and/or blood score is above a 0.08 and this is why:

Texas Penal Code 49.04 defines Driving While Intoxicated in the following manner, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” (Emphasis mine)

Texas Penal Code 49.02 (A) and (B) legally define intoxicated as, “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or  having an alcohol concentration of 0.08 or more.

As you can see, your blood alcohol concentration must be at 0.08 or more while you are operating a motor vehicle… not an hour or two hours after you operated a motor vehicle for the State to convict  you based on that definition.

This brings us to the concept of “retrograde extrapolation.”  While that sounds like a NASA term, retrograde extrapolation is the science behind trying to determine what someone’s blood alcohol concentration was several hours in the past.

Several things factor into retrograde extrapolation.  A person with the proper scientific background (usually the State’s breath test expert) can calculate what someone’s approximate blood alcohol concentration was at the time of driving based on factors such as height, weight, gender, type of alcoholic beverage consumed, and type or quantity of meal and time of the last drink.

It is not uncommon for the witness (typically the State’s breath test expert) to estimate that a person’s blood alcohol concentration was below 0.08 at the time of driving (or that the person’s BAC was actually higher while driving than it was at the time of testing) based on the retrograde extrapolation facts.  Jurors, then, may have a reasonable doubt as to whether the driver had a BAC of 0.08 or more while driving even though their breath test scores are above 0.08.

As a point of caution — retrograde extrapolation is based on scientific principals and Courts have limitations on what jurors will be allowed to considered as scientific testimony.  Only cases where the BAC score is reasonably close to 0.08 may cause the BAC to extrapolate low enough to make a difference.  For instance, it doesn’t help your case if the State’s expert witness says “instead of a 0.14, the subject was possibly at 0.13 at the time of driving.”

Police routinely question people (usually after the breath test) about what they had eaten, when they last ate, when they last drank, etc.  These questions are for the purposes of later retrograde extrapolation.  These questions are testimonial in nature and you have the right to refuse to answer them — which is typically the safer course.

Finally, a jury can simply have a reasonable doubt as to the validity of the breath test score — regardless of what it is.  If the jury has a reasonable doubt that the person on trial is intoxicated (on all the legal definitions of 49.02) — the verdict would be not guilty just the same.

*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 specific legal advice you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

DWI Arrest — Bond Terms and Conditions

April 18, 2010

The vast majority of people arrested for misdemeanor DWI offenses are released on bond.  They are free from jail but must appear for court settings during the pendency of the charges against them.  While “on bond,” the legislature has required that certain conditions be met.  The main condition which affects some DWI arrests is the ordering of an interlock ignition device (or deep lung device) on the defendant’s car.  This means the device can be placed on someone’s car before they’ve had a trial or had their first main court setting.

Texas Code of Criminal Procedure 17.441 holds that the judge shall, as a matter of law, order a deep lung device be placed on the vehicle of the defendant if the arrest in question was for a subsequent DWI, intoxication assault, or intoxication manslaughter.  The judge may not order the interlock devices in those circumstances as well if they make a finding that ordering the device is not “in the best interest of justice.”

Although, 17.441 is the only provision of the Code of Criminal Procedure which directly addresses deep lung devices, judges and magistrates have broad discretion to make “reasonable” conditions of bond for “community safety” under Tex.Code.Crim.P. 17.40.  Some magistrates take this as carte blanche to slap deep lung devices on first DWI offenders in random situations.

If a magistrate has unreasonably placed an interlock device on the driver’s car after a DWI arrest, that decision can often be amended or changed by the trial judge at a later point while the accused is on bond pending charges.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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, you should consult an attorney.

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What is a Motion to Suppress?

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A criminal defendant can challenge the legality of a detention, a search, seizure or other police tactic which resulted in law enforcement attaining evidence.  If the action is held to be illegal, the evidence is excluded (or suppressed) at trial.

Depending on the facts of any specific case, the suppression of evidence may mean the State’s evidence at trial will be insufficient to sustain a conviction — or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

This provision stems from the Fourth Amendment to the U.S. Constitution and it’s prohibition against unreasonable search and seizures.  Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid.  The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases.  Again, if evidence is attained illegally and it is excluded, the prosecution may lose it’s only evidence as to certain elements of the case.  Where this is the case, they lose as a matter of law.  This isn’t always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained evidence.

*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 specific legal advice about your own situation you should contact an attorney.

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Occupational Driver’s Licenses for Texas DWIs

March 25, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

What is an Occupational Driver’s License?

In Texas, an occupational license (also known as an ODL) is a temporary permit allowing people to drive while their license has been suspended due to a breath test refusal or breath test failure in a DWI situation.

How Can I Get an Occupational Driver’s License?

An occupational license is attained through a civil petition (basically a civil lawsuit) which a judge must approve.  The Judge can allow someone to drive for 4 hours a day (but can extend that to 12 hours a day upon showing of “essential need.”)  The court order, by law, must contain the times and routes of travel.  Judges can also order other provisions such as interlock devices be placed on cars during the occupational period for DWI cases.

For those with irregular travel due to work (for things such as sales routes), Judges can order log-books be kept in the vehicle.  Also, for the issuance of an occupational license, the State requires you attain what is known as SR-22 insurance.

What is an “Essential Need?”

Tex.Trans.C. 521.241 defines “essential need” as:

“(A)  in the performance of an occupation or trade or for transportation to and from the place at which the person practices the person’s occupation or trade;  (B)  for transportation to and from an educational facility in which the person is enrolled; or  (C)  in the performance of essential household duties.”

Chapter 522 of the Texas Transportation Code covers commercial vehicles.  No occupational licenses can be granted for commercial vehicles.  Tex.Transp.C. 521.242(f).

Occupational questions and qualifications can be very complex and consulting an attorney can save you much time and effort.

Quick References for More Information

The statutes governing driver’s license suspenses and occupational licenses due to intoxication and even marijuana offenses read like complicated flow charts and matrices… but here are some generalities and reference points:

Occupational licenses are governed by Chapter 521 of the Texas Transportation Code, Subchapter L.  Breath test suspensions are governed by Chapters 524 and 724 of the Texas Transportation 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 specific legal advice in your situation, you should consult an attorney.

 

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