“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.

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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.

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Posted by Jeremy Rosenthal, Esq.

Am I Guilty Just Because I was There?

March 1, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Texas, mere presence at a crime scene alone is insufficient to sustain a conviction.  The difference between just being at a crime scene and doing something which can be considered aiding or abetting is paper thin, however.  And if you’re complicit in an offense — you can be held equally responsible.

Texas has what is called the law of parties in criminal cases.  It is governed by Section 7.02 of the Texas Penal Code.

Tex.Pen.C. 7.02(2) says that if a person, “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense…” then they are criminally liable as well.  I’ve italicized the words above to show just how liberal the application of that law can be.

Let me give you a hypothetical of how this rule applies.  Take two 18-year old boys at the mall.  One decides he’s going to shoplift and the other doesn’t know about it.  If the friend doesn’t see and doesn’t know that the other was trying to steal as they all walk out of the store — it would be very difficult to say the non-stealing friend is guilty under the law of parties.  Certainly the shop owner and police may think so; but they would have to prove that in court.

On the other hand, let’s say the one guy is trying to shoplift and friend sees it.  He doesn’t participate, but he gets nervous and when the shop owner looks over at him, he “acts natural.”  Are both guilty of theft?  It’s a tough question.  Some jurors may consider that aiding or attempting to aid in the furtherance of the offense.

Issues like these are why criminal defense lawyers experienced in trial are crucial.  A criminal defense lawyer can force the prosecution to prove the complicit beyond all reasonable doubt.  If the prosecution can’t, then there will be an acquittal.  The burden is on the state to prove your intent and your actions.  The burden isn’t on you to show you were innocent!

It should be noted that there are many offenses where people have an affirmative duty to report the crime that they’ve witnessed.  This generally includes felony offenses and other cases where the witness owes a special duty to the victim.  Also anytime a person suspects abuse or neglect of a child, they have a legal duty to report the same to Child Protective Services.

*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, please consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Bonding Someone Out on a Felony Charge

February 28, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

This is actually an easy process to understand, but unfortunately it moves at the speed of government.

First you need to learn exactly what they are being charged with by the police.

Once you find out what they are charged with, your next step is to find out whether they have been before a magistrate judge to set a bond.  A bond is an amount of money paid or pledged to insure the accused appears for court.

Section 14.06 of the Texas Code of Criminal Procedure gives the police 48 hours to take someone arrested before a magistrate for the purposes of setting bond in felony cases.  If they don’t, then it triggers an automatic $10,000 bond under Section 17.033.  Rarely will anyone wait that long.  You can expect someone to be taken before the magistrate within the first 24-hours of arrest — hopefully sooner.

You have several ways to satisfy the bond.  If you pay the bond in cash then the bond is refundable once the case is over and the defendant complies with all the terms and conditions of bond.  If you cannot pay the bond, you can either contact an attorney-surety approved by the local county or you can contact a bail bondsman.  Both attorney-sureties and bondsman pledge to pay the county money in the event of non-appearance of the defendant.

Make sure any bondsman or attorney-sureties are licensed, bonded with the county, and reputable.

If the bond is too high, you can have an attorney petition a Court to have it lowered.

*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, please consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

They Didn’t Read My Miranda Warnings — How Does it Affect My Case?

February 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

I’m often told by people that, “they didn’t read me my Miranda warnings.”  Sometimes this is important and sometimes it is not.

What Are Miranda Warnings?

Miranda refers to a 1960’s U.S. Supreme Court case where a conviction was reversed because the police did not advise a Defendant of his rights prior to getting confessions for several offenses.  I’ll spare you the legal treatise on the topic but just understand it’s a highly complicated area of law.

The Significance of Miranda Warnings

Miranda violations can result in excluded statements, admissions or confessions a person may make while in custody.

Your right to remain silent and your right to a lawyer are generally triggered when you are in “custodial interrogation” and you are being questioned by the police or other governmental agency.  Custodial interrogation is too complicated to go over in this brief article but I will say that a typical traffic stop will not qualify as custodial interrogation under the current law in Texas.

Texas has codified Miranda in Article 38.22 of the Texas Code of Criminal Procedure.  That statute has additional protections above and beyond what Miranda required.  An example of an additional protection is that to be used, an oral confession must be made in the presence of some sort of electronic recording device.

To know how significant a Miranda violation is depends on the facts of the case.  

A hypothetical Miranda violation occurs where someone is handcuffed in the police station under a spotlight with interrogators and admits to a crime.  In that situation, failure to Mirandize someone might result in the confession being tossed-out by a Court.

Obviously real life doesn’t work that way and a Miranda violation may be more subtle or less significant.

Take a DWI for example.  Most of the State’s case will be conduct,  breath, and performance on field sobriety tests.  These things are considered “non-testimonial.”

Even if the police violate Miranda and the person confesses to having consumed alcohol but doesn’t believe they’re drunk — the Miranda violation will have little, if any, impact on the outcome.

Contrast a drug possession case.  In those cases, sometimes the only evidence someone was in possession of contraband such as marijuana are statements or confessions after the drugs are found.  If an officer violates Miranda before a confession is given, the violation may very well change the outcome of the case.

*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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