sqgreenlogo-2-ognopqx8p7eej8gd1grbidmpzzfk1mhw9yrbin24j8

Daly & Campbell Law Firm​​

1506 Winding Way Drive, STE 503, Friendswood, Texas 77546​

Client Reviews

fb-reviews

Learn More

What is Mortgage Fraud?

Going through the mortgage application process is grueling.  Lenders demand extensive documentation and long applications.  Mortgage fraud cases generally involve a material misstatement, misrepresentation or omissions

Read More »

DWI Offenses & Punishments

DWI Offenses & Punishments including mandatory Driver’s License Suspensions Driving While Intoxicated First Offense Class B Misdemeanor 1. Three days to 180 days in jail and

Read More »

DWI & Blood Tests

Blood samples are analyzed for alcohol content using a Gas Chromatography.  More specifically, it is a Head Space Gas Chromatograph with Flame Ionization Detector. The Good

Read More »

Driving While Intoxicated 101: What They Have To Prove

Driving While Intoxicated 101

To prove you guilty of DWI, the State has to prove 4 “Elements”:

1. Operating

2. A Motor Vehicle

3. In A Public Place

4. While Intoxicated

 

Elements?

The word “element” is used to separate the different things that have to be proven beyond a reasonable doubt before someone can be found guilty of a crime.  Since each element has to be proven beyond a reasonable doubt, if there is doubt as to any of the “elements” then the jury must find the person not guilty.  Each of the above elements present unique opportunities for a Defendant to challenge the State’s evidence against them.

1. Operating

Most people might think they law is “driving” but its “operating”.   There is not a clear definition of what operating is but courts have been willing to see it as more than just driving.  A court allowed a jury to find that the defendant was “operating” when the defendant was parked on the side of the road, asleep in driver’s seat, with the engine was running.  You must wonder who the defense attorney was that couldn’t convince the jury that wasn’t operating.  Choose your attorney wisely.

2. A Motor Vehicle

Ever think about what the definition of a “motor vehicle” is?  Most people probably haven’t.  The Texas Penal Code says, “Motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.  Normally this is straight forward but sometimes it is not.  Is a golf cart a motor vehicle?  Could the attorney you hire have an impact on how that question is decided?

3. In a Public Place

The law provides that a public place is a place that is accessible to the public.  With such a broad description, courts have often disagreed with its meaning.  Sometimes they have found parking lots to be a public place and sometimes they don’t.  This a good example of the impact of your attorney’s ability to make a strong argument for you can have on the outcome of your case.

4. While Intoxicated

Chapter 49 of the Texas Penal Code says that “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.

Subsection (A) could be divided into its own set of “elements.”

1. Loss of the normal use

What is considered “normal use” is up to the jury to decide.  What isn’t required is that they take you specifically into consideration because they have no idea what your normal use is.

2. of mental OR physical faculties

To be found guilty the jury can find a loss to the normal use of either or both for them.  The State will use the observations made about you in the offense report and/or the police video and claim that it is an indication of the loss of the normal use of your mental or physical faculties.  If you talk slow, the State will probably say it’s because you are intoxicated.  If you talk fast, the State will probably argue that it’s because your intoxicated.  Your attorney will also have a turn to speak to the jury.

3. because of the instruction of alcohol or drugs.

An individual can be charged with intoxication based on alcohol or the introduction of any substance into the body including prescription and over the counter medications.  The State may also argue that intoxication is caused by the combination of alcohol and drugs which is referred to as a synergistic effect.

Subsection (B) has to do with blood or breath test results.  See below for more about these tests.  One think to note about the legal standard is that it only applies to alcohol.  There is no legal standard to determine whether or not a certain amount of drugs found during a blood test causes intoxication.

Are you are here looking for help? If so, we are here waiting to help you.