By Collin County Criminal Defense Lawyer Jeremy Rosenthal
There is a new ad campaign from the National Highway and Transportation Safety Administration (“NHTSA”) and the Ad Council trying to curb drunk driving. The new slogan is “Buzzed Driving is Drunk Driving.”
Its catchy. Its concise. I’d say it’s pretty good advertising.
But the problem is its just not true. At least not in Texas.
Why Buzzed Driving Actually Isn’t Drunk Driving
Texas Penal Code 49.01(2)(A) defines intoxication as;
(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.
I don’t see the word “buzzed” anywhere in there. I don’t see the word “drunk” either for that matter. And this brings me to what I call the ‘war of words.’
“The War of Words” in the Courtroom:
The war of words is a common battleground in most DWI trials. The legislature gave us the clunky words “not having the normal use.” The problem is many prosecutors I’ve tried Driving While Intoxicated cases against try to re-define it in a way to make it easier to get their conviction. They’ll either give favorable or inaccurate examples or they will omit parts of the definition which are inconvenient.
As just one example, I’ve heard prosecutors explain to jurors a glass of wine making someone cheek’s red equals intoxication because that person is “no longer normal.” But the statute doesn’t say, “no longer normal.” Not troubling? Consider by this standard anyone who has a drop of alcohol is a drunk driver when the get behind the wheel.
This means YOU are a drunk driver. Yes, YOU!
The Definition Also has the Word “Use”
I remind jurors about the word “use” in conjunction with the term normal. Someone with a bad knee might not have a normal knee… however when driving a car, they can use it well enough to have the “normal use” of the knee for the purposes of operating a motor vehicle.
Someone might have a headache rending them not ‘physically normal’ for the time their head hurts. But they can still speak, do math or drive a vehicle with their malady. So I’d say this person, while not normal, has the ‘normal use’ of mental or physical faculties.
The “Two Beer” Game
There is just something about a formal and dark courtroom with a judge in a robe and everyone wearing suits to get us all to forget reality. When a uniformed police officer begins using lexicon such as calling cars “vehicles” and calling the person he stopped a “suspect,” then calling a bud light an “alcoholic beverage,” it sets the scene for what I like to call “the two beer game.” That is when we all act like two beers is excessive and irresponsible for drinking prior to driving.
In reality, 2 beers would only legally intoxicate a leprechaun or a 10-year old — neither of whom I’ve ever seen on trial for DWI.
It is important to get the jury out of the “two beer game” mode. I like to ask jurors why restaurants like Chili’s, On the Border, or Texas Land & Cattle have bars inside and also parking lots… it is because it is not illegal to have alcohol and drive. It is my way of getting jurors to “snap out” of the indoctrination.
The Buzzed driving slogan is indoctrination and spin. Decreasing the number of drunks on the road is high-minded work. It is important. From that point the slogan is okay.
The Buzzed Driving slogan only hurts those wrongly accused of DWI because their jurors have been lied to about the law. In other words, it is only a problem when you or your loved one is on trial. In which case you’re pretty mad about this lie.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact a lawyer directly.