Driving While Intoxicated

So I suppose you are reading this because you or a family member has been arrested for driving while intoxicated. Scary? Yes. Guilty yet? No. Something to lose sleep over tonight? No.

Let me tell you why.

First let’s start with understanding where you are: You are NOT GUILTY. You are simply charged. There is a huge difference between the two.

You (or a close family member, for instance) have merely been arrested for DWI (or, if boating, BWI). That does not – at all – mean you or they are guilty of a DWI. A police officer can arrest you for a DWI, but only a Jury can convict you on one. So first point: realize that you are merely a not-guilty person (you are presumed innocent under the law) charged with a crime that has yet to be convicted of anything. So right now you are only charged with the possible commission of a crime.

So take heart. You’re not guilty at this point in time. But there is an ALR process that automatically revokes your license during the process, and you have 15 days from the date of arrest to contest the revocation. To read more about that, click here. We can also help you with this process.

The sad part about DWI offenses is that they are a “strict liability” offense. There are very, very few under the law that remain. Most have been abolished, and thankfully, frankly. They still exist primarily in the traffic law arena.

Most criminal charges involve an element of what is called “mens rea” – i.e., a guilty state of mind. It’s a fancy latin word that we learn in law school that simply refers to one’s state of mind. For instance, one takes a hatchet and intentionally strikes another. The mens rea is the intentional action to hurt another.

The problem with DWI arrests is that you could hurt no one, nor intend to hurt anyone, nor have any intent to do anything except drive home after a dinner party, for instance. You hurt no one. You intended to hurt no one. Yet you were driving 48 miles per hour in a 45 mile per hour speed zone. And when the police officer pulled you over, he smelled alcohol on your breath. After you are asked to perform some tests and allegedly fail them, you are arrested. You may have refused to blow into a breathalyzer or had your blood drawn at the hospital or police station.

People are, by nature, different. We all know people that can drink a case of beer yet are less affected than the one who drinks one mojito. Yet the law makes no such distinction, because the DWI law was never designed to apply to individuals. It is a “greatest good for the greatest number” philosophy.

It’s like an SAT test, for instance. A group of folks develop a test to try to test the alleged intelligence of a large number of people. Not one of the test developers ever developed the test for you, or for me, or for anyone, individually – realizing our own uniqueness - they tried to create something to try to determine abilities across huge numbers of individuals – each one different than the other.

If you drive dangerously and hurt another, whether allegedly-intoxicated or sober, there are consequences. Yet if you drive without hurting another, the government sometimes suggests that you are guilty and a presumed danger once a police officer alleges you are intoxicated. Yet you hurt no one. Therein lies the rub.

This is the problem with strict liability offenses. They have no bearing on individual intelligence, ability, reaction, behavior, knowledge, tolerance, motivation, body mass, water retention, digestion abilities, enzyme abilities, or anything else – they simply pick a point - of another’s choosing - and determine guilt or innocence based on an arbitrary line without any individualized inquiry.

One, the primary difference between me and most folks who do what I do is that I live and breathe the science. I love the science, because the science of DWI is fascinating. Here’s what I mean. If you are pulled over at 10:02 PM and have a breathalyzer conducted at 11:37 PM, and you’re blood-alcohol level is a .09, what was your blood alcohol level at 10:02 PM (i.e., when you were pulled over)? The State does not know. No one does. Yet blood alcohol levels are seldom linear and never completely determinable based on modeling – they are individualized and depend on a litany of factors and individual determinations. Which means: if the State does not do that work, then the State has a much, much harder time of proving guilt beyond a reasonable doubt. Most lawyers do not do that work. I do.

Two, I’m really passionate about DWI offenses, if you cannot already tell based on the above. I think they are largely unfair. If you want a lawyer who is extraordinarily passionate about righting these wrongs and scientifically hammering the evidence, please call me at (903) 944-7537 or contact me via the website contact form.