Brian K. Tackett

Brian K. Tackett

Friday, February 3, 2012

DWI - "Not Guilty"

This week I tried a DWI to a jury.  The jury deliberated for 50 minutes and came back with a not guilty verdict.  The jury trial has inspired a number of future blog topics:

1. Loss of the normal use of physical or mental faculties -- In addition to the breath or blood test, this is an element of DWI.  The standardized field sobriety tests (SFSTs) are not normal tasks.  Yet, somehow a police officer is able to determine whether a person has "lost the normal use", by putting him through a battery of abnormal activities.  It's not normal for a person to stand on one leg.  It's not normal for a person to walk on a line heel to toe.  It's not normal for a person to stand with feet together, hands at the side, staring slightly up at a pen that's passing back and forth in front of that person's face.  An experienced attorney can exploit this paradox to the benefit of his client.

2. What to say when offered a breath or blood test -- As a trial attorney, it never ceases to amaze me how much you can learn from non-lawyers particularly your client.  Just by happenstance, my client came up with what may be the ultimate response when offered a breath or blood test.  Keep an eye out for the answer in an upcoming blog.

3. Breath or blood test consequences -- There are consequences to either refusing and submitting to a breath or blood test.  You have to weigh those consequences and consider how they might affect your DWI case in the months following the arrest.  More on that later.

4.  Risks, consequences, and considerations when deciding whether or not to take your DWI case to trial -- It may come as a surprise to most that for the first time offender the risks associated with taking for DWI case to a jury are very minimal.

For this attorney, jury trials are a lot of fun.  But they are a whole lot more fun when you win.  It is a huge boost to your confidence, ego, and reputation.  But it's even more rewarding to see the look of relief and gratitude on the face of your client.

If we can help you with your DWI case or any other criminal case, please contact us at (940) 387-3518, or visit us at and  Don't forget to follow us on twitter @iheartmylawyer.

Tuesday, January 3, 2012

Differences Between DWI, DUI and Drunk Driving

            In the State of Texas these terms are used very differently in the legal field as they mean very different things. To the layperson they are typically used one in the same or synonymously.   First, anytime you have alcohol introduced into your body, with today’s zero tolerance stances on driving while intoxicated, you have put yourself at risk of being charged with this crime.  Officers typically “detect” the odor of alcohol during the stop, and you typically find yourself like other poor schmucks before you attempting to do FST’s (field sobriety tests) on the side of the road, in the rain, and on uneven pavement.  These tests will become more aggressive the better you do on them…before you know it you’ll be asked to say the alphabet backwards, without singing.  Two things,  who can actually say it backwards and who can possibly do it without singing (we’ve been taught that since we first learned them)?  And if that doesn’t stump you, then comes the HGN, please follow my pen and do what I say….amazingly the officer is the only one to know if you passed or failed, we must take his word for it.  Get the picture?

            Driving While Intoxicated in Texas is when a person operates a motor vehicle while intoxicated.  “Intoxicated” is defined in the Texas Penal Code as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more”. Texas Penal Code section 49.01.  Ultimately this section is reserved for those individuals who are of the legal drinking age and the punishment ranges on these offenses are from probation to county time all the way to probation and time in the Texas Department of Corrections, affectionately known as the “THE PEN”. 

            Driving While Under the Influence, specifically involves those individuals who have not reached the legal drinking age of 21 and are operating a motor vehicle.  The main difference with this charge is that the officer merely has to “detect alcohol”, it is not required that intoxication be proven or even shown.  These offenses are typically Class C offenses with a fine not to exceed $500.00 and community service, driver’s safety courses or perhaps course in underage drinking.

            “Drunk Driving” is the term that has been sensationalized by our legal system, lobbyists and the media that ultimately has created a stigma for those accused of DWI/DUI.  It is the term used to make our society as a whole fearful of responsible drinking and driving.  It is a term that has criminalized having a glass of wine with dinner and then driving home afterwards. It has become the battle cry for others and a symbol of how far our society has fallen.  We have chosen to criminalize what is in fact not criminal in nature. 

            In the context of a DWI case, the prosecutor has a much lower burden of proof than to show the accused was driving while drunk.  The prosecutor must merely show that the accused lost the "normal use of his physical or mental faculities".  The true irony is that the DA will argue that the accused lost the "normal use" but the proof will be based upon performance of activities that are not normal -- the field sobriety tests.   A good attorney can exploit this irony.

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