What is the Difference Between DUI and DWI?
These alcohol-related offenses are similar in most respects.
As is the case in most other states, Texas’ zero tolerance law is the difference between DUI and DWI. Driving Under the Influence is a zero tolerance offense that applies to minors under 21. These individuals cannot legally drive if they have any trace of alcohol in their bodies. Driving While Intoxicated is an over-21 offense. These charges apply if the defendant lost the normal use of his/her mental or physical faculties or had a BAC above .08, or .04 if the defendant was a commercial driver.
Otherwise, the elements of DUI and DWI are identical. So, the defenses available to a Ft. Worth DWI/DUI lawyer are identical as well. Some of these defenses are outlined below. Although DUI and DWI are difficult to prove in court, prosecutors often stubbornly refuse to reduce charges to reckless driving or another lesser-included offense that does not have the same indirect consequences as DWI/DUI. So, in many cases, a Ft. Worth criminal defense lawyer must go all in.
Intoxication/Impairment
This issue is usually the critical issue in a DUI or DWI matter. If a Ft. Worth criminal defense lawyer creates a reasonable doubt in this area, the defendant is not guilty as a matter of law.
About 80% of these defendants agree to submit chemical samples, usually breath samples. A chemical test activates the per se portion of the DUI/DWI law, making it easier to prove the offense in court. However, the Breathalyzer is not a very accurate device.
Calibration, or lack thereof, is a major Breathalyzer issue. On the witness stand, police Breathalyzer techs go on and on about the gadget’s advanced features. Everyone knows that the more features a device has, the more things can go wrong.
Furthermore, the Breathalyzer is very sensitive to temperature changes, both air temperature changes and body temperature changes (e.g., the subject’s mild fever skews the results).
Even if properly calibrated, the Breathalyzer’s margin of error is significant. Any calibration issue casts serious doubt on a .08, .09, or other borderline BAC level.
If defendants exercise their constitutional right to remain silent and refuse to provide chemical specimens, prosecutors must rely on weak circumstantial evidence, such as the DUI eye test (horizontal gaze nystagmus test).
Alcohol causes nystagmus, or involuntary pupil movements at certain viewing angles. But many other things, mostly a childhood brain injury, also cause nystagmus. In fact, alcohol is far down the list of possible nystagmus causes. Largely for this reason, most judges only allow prosecutors to use this test evidence for limited purposes.
Driving/Operating a Vehicle
Under Texas law, a defendant can literally be asleep at the wheel and “drive” the vehicle for DUI/DWI purposes. However, the state must offer additional evidence.
Prosecutors must establish, beyond any reasonable doubt, that the vehicle was in good, working order at the time. The state must also prove the vehicle was drivable (e.g., air in the tires and gas in the tank).
Additionally, in most cases, the vehicle must have been in a public place at the time. Streets in large shopping malls or apartment complexes usually aren’t public places. A private driveway may not be a public place either.
On a related note, the state must file DUI/DWI charges in the correct county. Tarrant County judges do not have jurisdiction over any offense that occurs in Denton County or another jurisdiction.
Work With a Diligent Tarrant County Attorney
Several defenses are available in DUI and DWI matters. For a confidential consultation with an experienced criminal defense attorney in Ft. Worth, contact the Law Office of Kyle Whitaker. Convenient payment plans are available.
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