“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.


Which DWI Charges are Felonies and Which are Misdemeanors?

February 23, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

All the “tough-guy” talk from law enforcement about DWIs in Dallas and Collin Counties in Texas has created a lot of confusion.

Most DWI Arrests Are Misdemeanors

Most are relieved to hear a first arrest is a Class B misdemeanor and a second is a Class A.  But when do DWI’s become felonies?

Several ways.  What makes the identical act of driving a motor vehicle in a public place while intoxicated (which is normally a misdemeanor) a felony is generally additional or surrounding factors.

It is important to note that every jail term I describe below may be probated in certain circumstances.

Driving While Intoxicated With a Minor

DWI with a minor 15 years-old or younger is a State Jail Felony punishable between 180 days and 2 years jail and/or a fine not to exceed $10,000.

Driving While Intoxicated (3rd Charge or More)

If you’ve been convicted of DWI two times before, then the third DWI is a 3rd degree felony carrying a possible prison sentence between 2 and 10 years and/or a fine not to exceed $10,000.  Additional convictions pile-up like bricks with the enhancements getting progressively harsher.  For details on specific enhancements for a 4th DWI or greater, consult an attorney.

Intoxication Assault

Intoxication assault is typically a non-fatal accident where someone is seriously hurt or disfigured and is a 3rd degree felony.  The prosecution must prove not only that the defendant caused the accident, but the accident was caused by the intoxication — and that a person suffered “serious bodily injury.”

Intoxication Manslaughter

Intoxication manslaughter is the same as intoxication assault, except that the accident causes someone to die.  It is a second degree felony carrying a sentence between 2 and 20 years prison and a fine not to exceed $10,000.

The Texas Legislature has allowed for the “stacking” of punishments for intoxication assault and/or manslaughter.  What this means is that if there is more than one victim (hence multiple counts), those punishments can be added together whereas most felony punishments run concurrently (or together).

Enhancements for felony punishment can be complex in Texas, so it’s essential to discuss the specifics with an attorney.

*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.