The Difference Between DUI and DWI in Texas

March 22, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Every state has laws preventing drunk driving.  Some call their laws DWI (driving while intoxicated) and some call it DUI (driving under the influence).  Texas actually has both, but there is a big difference between the two.

DUI – Minors

Only a minor can commit a DUI in Texas.  A DUI is where a person under 21-years of age has consumed any detectible amount of alcohol and is operating a motor vehicle.  A DWI can be committed by anyone (including minors) who do not have the normal use of their mental or physical faculties due to the introduction of drugs, dangerous drugs, or other substances into the body and are operating a motor vehicle.

A DUI is a Class c misdemeanor meaning it is the lowest level offense and it’s typically handed by a justice of the peace or at the municipal level.  The maximum fine is $500 and there is a big push in those cases towards rehabilitation, community service, and alcohol eduction.  The burden is clearly lower for those cases as the state only needs to show the driver consumed, “a detectible amount of alcohol.”  Both offenses carry possible drivers license suspensions.

DWI – Both Adults and Minors

A DWI is a class b misdemeanor punishable between 72 hours and 180 days jail and/or a fine not to exceed $2,000.  Generally speaking, a DWI is what people are referring to in Texas when they talk about drunk driving laws.

Jeremy F. Rosenthal

(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.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

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

March 7, 2010

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 mental 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.

*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.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Passing The Breath Test Doesn’t Mean You Don’t Get Charged with DWI

March 5, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code Section 49.01(2) defines intoxication as

“(A) 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

(B)  having an alcohol concentration of 0.08 or more.”

As you can see the legislature used the word “or” between subsection (A) and (B).  This means that you can be charged with DWI where the officer believes you “do not have the normal use…” regardless of whether a breath test was taken — and regardless of whether a breath test result was below 0.08.

Technical Supervisors, who are the state’s “breath test experts” at trial have training on alcohol, it’s effects on the body, and it’s effects on driving.  They testify, in general, that no one has the “normal use” above 0.08 for the purposes of operating a motor vehicle and some lack the “normal use” below 0.08.

The end analysis is simple — if the officer says you’ve lost the “normal use,” then you are getting arrested for DWI regardless if you blow a 0.11 or a 0.06.

Many police officers will also suspect marijuana, narcotics, or medications may be responsible for someone’s condition even if there is little or no evidence of it.

As a former Collin County Prosecutor and as a Criminal Defense Lawyer in Dallas and Collin Counties, I have yet to see or hear of anyone that got taken back to the police station for DWI, was asked to take a breath test, and wasn’t charged with DWI regardless of the result.  Maybe it has happened.  I’ve just never heard about it.

This is part of the lose-lose equation which is the breath test.  And then the police actually wonder why people refuse the breath test all the time.

*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 legal advice.  For legal advice, you should consult with an attorney.

1 Comment | DWI | Tagged: , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Your Driver’s License Isn’t Actually Automatically Suspended If You Refuse A Breath Test

February 20, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Texas DWI’s have two sides.  There is a criminal side and the administrative side (i.e., the driver’s license suspension.)  Today I’m only discussing the administrative driver’s license suspension side.

Texas has an “implied consent” law.  This means when you got your driver’s license, you implied to the Department of Public Safety (“DPS”) that if an officer ever offered you a breath-test, you would comply.  If you fail to comply – or you do comply and blow over 0.08 – then your driver’s license can be suspended.

What the DPS media blitz omits is that this isn’t automatic.  You have 15 days from the date of arrest to submit an appeal.  The instructions are on the sheet of paper they should have given you when they confiscated your driver’s license.

You are appealing the officer’s decision to ask you to take the breath test and/or the breath test score.  These things can be very legally technical and it is frankly difficult for people to win without lawyers.  These proceedings are generally called ALR’s by lawyers which is short for Administrative Law Review.

ALR’s are done in Collin and Dallas Counties like a deposition in a conference room and most lawyers advise their clients not to attend.  If the ALR Judge determines DPS lost your ALR, then your driver’s license is not suspended.  This happens all the time.

The ALR proceedings run concurrently or parallel to your criminal DWI case.  Sometimes the ALR proceedings take longer and sometimes they’re shorter.  If you win your DWI on the criminal side, the driver’s license suspension can also be negated.

*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 consult an attorney.

1 Comment | DWI, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Next Entries »