Texas has two legal definitions of intoxication. The first is what we will discuss today — not having the “normal use” of you mental or physical faculties. The second is having a blood alcohol concentration of 0.08 or greater.
Herein lies a classic struggle between prosecutor and defense attorney. The term “normal use” is usually defined by the judge only to be a “normal non intoxicated person.” That’s all the clarification a jury gets. It’s as clear as mud.
What the prosecution will often attempt to do — as early as jury selection — is manipulate the definition of “normal” to make it as slight a burden as possible. The less drunk they have to prove the defendant is, the better their chance of winning at trial. I’ve had prosecutors suggest to the jury that having rose-colored cheeks after a glass of wine is a sign alcohol is affecting someone. Other examples I’ve seen from prosecutors is that someone who is chattier or quieter than usual because they’ve been drinking may be signs of “not having the normal use.”
Obviously, examples as given above can be seen as excuses to convict practically anyone that has been drinking and is behind the wheel. That’s not the law. A DWI trial lawyer will point out that the words “normal use” are very broad and mean what they mean. They shouldn’t be manipulated by prosecutors trying to lessen the burden of proof. I’ve been on a airplane before where there was an engine malfunction yet the pilot announced to the passengers that the plane “was operating normally.” The word normal is extremely subjective.
Fighting DWI’s in Dallas and Collin Counties involves knowing how to spot and combat this trial tactic and many others prosecutors are taught.