Chapter 10 Driving Under the Influence Basic Law

§ 10:1 Driving under the influence (DUI) basic law— Generally

• Texas Court of Appeals
  • Findlay v. State, 9 S.W.3d 397, 401 (Tex.App.—Houston(14th Dist.), 1999)
    • While the subject matters covered by the two statutes are similar, we do not believe that they are the same.
    • The DWI statute covers intoxication arising from alcohol consumption, as well as that arising from the ingestion of drugs.
    • The DUI statute, on the contrary, only covers alcohol consumption.
    • While alcohol-induced intoxication must be caused by alcohol consumption, these two subject matters are different. Every person who drinks alcoholic beverages will not automatically become intoxicated. Likewise, every person who is “intoxicated,” as that term is defined in the Penal Code, can attain that state as a result of consuming alcohol, as well as other substances.

• • Rubio v. State, 203 S.W.3d 448, 452 (Tex.App.—El Paso, 2006)
    • “Driving under the influence of alcohol is not the same as “driving while intoxicated”. 
    • DWI suggests a person who was driving in a public place had lost normal use of either mental or physical faculties or had a BAC of .08 or more.  (citing Tex.Penal Code Ann. §§  49.01, 29.08 (Vernon 2003)).
    • DUI suggests a person was driving after having consumed alcohol without requiring any determination as to the illegality of the situation.  (citing Buie v. State, 2003 WL 21189757, 2 (Tex. App.—Austin, 2003)).
    • The actions of DUI of alcohol can be used to show a conscious disregard of a substantial risk.

• • Buie v. State, 2003 WL 21189757, 2 (Tex. App.—Austin, 2003)
    • The fact that one may legally drive after consuming intoxicating substances does not prevent the State from alleging that the driver was reckless in doing so; illegality is not a prequisite of recklessness.

• Texas Statutes and Codes
  • Texas Penal Code § 6.03(c) and (d)
    • (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
    • (d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

• • Texas CCP Art. 21.15
    • Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

§ 10:2                  Elements

• Texas Statutes and Codes
  • Texas Alcoholic Beverage Code, Ch. 106, § 106.041(a) – DUI of Alcohol by Minor Definition

(a)  A minor commits an offense if the minor operates a motor vehicle or water craft in a public place while having any detectable amount of alcohol in the minor's system.

 

• • Texas Alcoholic Beverage Code, Ch. 106, § 106.041(b) – DUI of Alcohol by Minor

(b) Except as provided by Subsection

(c), an offense under this § is a Class C misdemeanor.

 

Discussed more in penalties chapter.

§ 10:3                  Caselaw

• Misc.
  • senate Criminal Justice Comm., Bill Analysis, Tex. S.B. 35, 75 th Leg., R.S. (1997)
    • Stating that the offense of DUI was intended to be separate from DWI.

• • Op.Atty.Gen. 1998, LO–027
    • A person under the age of twenty-one may be prosecuted for the offense of driving while intoxicated under V.T.C.A., Penal Code § 49.04 notwithstanding the enactment of V.T.C.A., Alcoholic Beverage Code § 106.041.

• • Tex. Att'y Gen. Let. Op. 98-153 (1998) – Dan Morales
    • advising that minors can be prosecuted under either the DWI statute or the DUI statute.

 Texas Court of Appeals

• • Findlay v. State, 9 S.W.3d 397, 399-401 (Tex.App.—Houston(14th Dist.), 1999)
    • Driving while intoxicated statute (DWI) statute and driving under the influence (DUI) statute are sufficiently different that they are not in pari materia or in irreconcilable conflict and instead allow State to prosecute underage motorist for DWI, even though both statutes cover same persons and similar subject matter, in light of fact that purpose of DWI statute to address intoxicated driving by any motorist to protect safety of travelers differs from purpose of DUI statute to address driving by minors after consumption of any alcohol in effort to prevent loss of federal highway funding.
    • The DWI statute addresses intoxicated driving; the DUI statute addresses minors who drive vehicles after using alcohol. Here, the State properly exercised its discretion to prosecute appellant under the DWI statute, rather than the DUI statute.
    • the legislature's express choice to state that DUI was not a lesser included offense of DWI presupposes that a minor could still be convicted under the DWI statute.
    • Fact that a statute provides for the expunction of offense of a minor driving under the influence of any amount of alcohol (DUI) when the minor is convicted of no more than one such offense, without allowing expunction for driving while intoxicated (DWI), does not require that minors be treated differently than adults and prosecuted only for DUI rather than for more serious DWI offense.

• • Washburn v. State, 235 S.W.3d 346, 350-351 (Tex. App.—Texarkana, 2007)
    • Law enforcement officer had probable cause to arrest defendant for driving while intoxicated (DWI) and for driving under influence (DUI) by a minor; defendant's vehicle collided with a tree, road was dry at time of accident, defendant's vehicle began to skid while in lane designated for oncoming traffic, defendant admitted drinking and had slurred speech, officer could detect odor of alcohol on or about defendant's person, and defendant was under 21 years of age at time of accident.