Law Office of 

​Lawrence C. McCotter

Aggressive Defense Attorney of Criminal and Juvenile Charges

THE WOODLANDS - CONROE - SPRING - HOUSTON - HUNTSVILLE
MONTGOMERY COUNTY - HARRIS COUNTY - WALKER COUNTY

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281-703-1539
  
DRIVING WHILE INTOXICATED

BOATING WHILE INTOXICATED
  
    
The general, foundational law relating to Driving under the influence of alcohol or other substances that can impair a driver of a motor vehicle in Texas are found in Chapter 49 of the Texas Penal Code.  There are other very important statutes relating to collateral consequences found in the Texas Transportation Code.

The basic statute says:

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
  
  
So, the elements that the State’s prosecutor has to prove to a jury (beyond a reasonable doubt) to get a guilty verdict for DWI are that:

   1.  on or about a certain date,
   2.  in the prosecuting county,
   3.  the accused
   4.  was “operating”
   5.  a “motor vehicle”
   6.  in a “public place”
   7.  while “intoxicated”.
 
  
WHAT DOES “INTOXICATED” MEAN? 
The statute defines “intoxicated”:
"Intoxicated" means:
               (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.
So the State can prove intoxication two ways:  (1) by evidence of the measured concentration of alcohol in the driver’s blood or breath, or (2) by evidence that the driver did not have the normal use of his/her mental or physical faculties caused by alcohol or some drug or other controlled substance found in the driver’s system.
An alcohol concentration of 0.08 means 0.08 “grams of alcohol per:
               (A)  210 liters of breath;
               (B)  100 milliliters of blood; or
               (C)  67 milliliters of urine.”
Evidence of blood alcohol concentration is generally always from an analysis of a sample of the defendant’s breath or blood taken as soon as possible after arrest (I have been defending DWI cases for 22 years, and I have never seen a urine analysis used in a DWI case).  The time lapse between the time the defendant was operating the vehicle and the time the breath or blood sample was taken is very important.  This is part of a complex analysis of facts that affect the concentration of alcohol in the sample relative to (a) the type and quantity of alcohol that may have been ingested; (b) the time it was ingested; (c) the time lapse since the last drink was ingested; (d) the amount of time over which the various drinks were ingested; (e) whether the defendant also had food in his stomach; and other factors.

 
 
DOES THE STATE HAVE TO PROVE BLOOD ALCOHOL CONCENTRATION?

No.  Per the statute, if the prosecutor doesn’t have blood or breath evidence, it is still possible to convince a jury the defendant was intoxicated by showing that she looked or acted inebriated.  They often can show this by oral admissions that the defendant made to the officer; the way the defendant looked, acted and spoke on video evidence that exists; how the defendant performed the Standard Field Sobriety Tests the officer had the defendant do; by the officer’s testimony about the strong odor of alcohol on the defendant’s person and breath; by the testimony of an eyewitness who may have called the police because of the way the defendant was driving; or by the fact that the defendant was involved in an accident.

In most DWI prosecutions, there is video evidence in the form of police dash-cam video or body-cam video.

IF THERE IS DAMAGING BLOOD, BREATH AND VIDEO EVIDENCE, IS A DEFENSE IMPOSSIBLE?

No!  Just because the State’s prosecutor has such evidence doesn’t mean that it is admissible.  We will carefully and thoroughly examine all evidence in your case to see if it should be excluded from trial for a number of factual and legal reasons. If damaging admissions, video, or blood or breath evidence is inadmissible, it can’t be used in trial and that can mean the state can’t prove their case.

IF I DIDN’T HAVE ANY ALCOHOL IN MY SYSTEM, THE STATE CAN’T PROVE DWI, RIGHT?

Wrong.  A driver can be intoxicated due to other substances in their system such as marijuana and drugs – both illegal and legally prescribed.  I have defended many DWI cases in which alcohol was not a factor.  Many prescribed and even over-the-counter drugs can cause a driver to not have the “normal use of mental and physical faculties”.  DWI prosecutions due to marijuana use are more and more common.  This is more difficult for the State to prove unless admissible video evidence shows impairment.  In just the last ten days, as I write this page, I was able to secure dismissals of two such marijuana-based DWI cases, even though the amount of THC in the blood was significantly high.
  
  
NEVER TRY TO HANDLE YOUR DWI CASE YOURSELF!  This is a factually, legally and scientifically complex and difficult area of criminal defense for even experienced defense lawyers.  What chance will you have to get a fair result?  The prosecutor is NOT your friend!
  
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