“(a)  A person commits an offense if with criminal negligence he sells an alcoholic beverage to a minor.

“(b)  A person who sells a minor an alcoholic beverage does not commit an offense if the minor falsely represents himself to be 21 years old or older by displaying an apparently valid proof of identification that contains a physical description and photograph consistent with the minor’s appearance, purports to establish that the minor is 21 years of age or older, and was issued by a governmental agency.  The proof of identification may include a driver’s license or identification card issued by the Department of Public Safety, a passport, or a military identification card.

“(c)  An offense under this section is a Class A misdemeanor.

“(d)  Subsection (b) does not apply to a person who accesses electronically readable information under Section 109.61 that identifies a driver’s license or identification certificate as invalid.

There are two main points I’d like to make about this statute.  First, is that the inclusion of criminal negligence (which I’ve italicized above) as a mental state for this offense.  Criminal negligence is the lowest (or most easily proved) culpable mental state in Texas law.  And under Texas Penal Code 6.02(e), if the prosecution proves actual intent, knowledge, or even recklessness — then they’ve proved “criminal negligence” as well.

A person acts with criminal negligence 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.

Proving someone acted with “criminal negligence” is highly confusing in these types of prosecutions because courts generally won’t give a jury any more guidance as to it’s definition than I just did above.

Additionally, the statute essentially gives an out to persons that sell alcohol to minors under subsection (b) — as it is a defense to prosecution if the person who presented the identification did so with an “apparently valid” form of identification.  But if the person has a way to electronically verify the information then the affirmative defense doesn’t apply no matter how good the fake i.d. was.

The sale of alcohol to minors is a Class A misdemeanor which puts it above DWI’s or possession of small amounts of marijuana.  It’s punishable by up to a year jail and a fine not to exceed $4,000.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For any legal advice you should consult an attorney directly.

Texas Penal Code Section 25.03 is titled “Interference With Child Custody,” and that section reads accordingly:

(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person:

(1) knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody; or

(2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(d) An offense under this section is a state jail felony.

The legal and factual scenarios and defenses are seemingly endless. Take, just as one example, a case prosecuted under 25.03(a)(1)… A prosecution under that section would probably include a complete order from the Divorce Judge which may or may not be written clearly enough to provide a party with sufficient guidance as to what is or is not permitted for times of custody (at least in the context of criminal liability.)

Also, Section (C) provides what is known as a “safe harbor,” where the offense was committed under 25.03(a)(2)… Which is to say that if the violating person returns the child within 3 days to the area or county controlled by the Court they have a defense to prosecution. This is to facilitate the return of children and to a lesser degree (I suspect) because the criminal justice system has a some biases against getting involved in the micromanagement of custody disputes and orders.

If you are being accused of interference with a child custody order, you should involve competent and qualified criminal representation at once. It’s not something to fool with.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should consult an attorney directly.

Of particular importance here are the following facts. First, the Dwi alcohol concentration law states someone is drunk when he has a.08 in his breath, but it does not say.08 by breathalyzer. This point means that no judge or jury is either required or obliged to believe that an Intoxilyzer result of.08 or more is accurate or reliable.

Next, the manufacturer will not allow anybody outside of law enforcement to test out the breathalyzer’s accuracy or dependability. It is generally known that for a technique to be recognized as legitimate and trusted in science, it must be available to the scientific community for assessment. This is not the scenario with theIntoxilyzer.

Third, the producer states it doesn’t designate the Intoxilyzer to be suitable for any unique purpose, an implicit admission by the manufacturer that its equipment is not actually warranted as precise and reliable for breath assessment.

Fourth and last, the Intoxilyzer’s working structure is built upon the assumption that every single man or women tested is exactly the average individual. All persons are not exactly average! All of us come in varying sizes, weights, ages, and deviate in muscle size, lung capacity, alcohol threshold, temperature, hematocrit levels (amount of solids in the blood) as well as breath/blood proportion (the amount of instances an item appears in the blood versus. the number of times the same item shows up in the breath). Automatic and undetected mistakes can be illustrated by merely having the individual tested not be exactly average. In connection with this, it should be mentioned that Intoxilyzer assumes a blood/breath ratio of 2100/1 (2100 parts of alcohol in the blood for every one part of alcohol in the breath) for each man or women tested. Here, it should be known that a great deal of individuals have a blood/breath ratio of 2100/1 or more. Persons with a blood/breath ratio higher than 2100/1 will not be prejudiced by Intoxilyzer’s assumption. Having said that, persons with a lower blood/breath ratio will be prejudiced because the Intoxilyzer will mistakenly report too high an alcohol concentration result and can bring about somebody who ought to test a.04,.05,.06, etc. to in fact check out at.08,.11,.12, and so forth. Of distinct relevance here is the fact that researchers have recorded people with blood/breath ratios as low as 1100/1.

Moreover, since the Intoxilyzer is designed, serviced, and controlled by people, it is vulnerable to human mistakes just like all other devices.

The above facts conclusively illustrate that the Intoxilyzer, even if it is properly functioning and is being properly operated, because the man or women being tested is not exactly average, can label an innocent man or women as guilty.

Criminal legal matters involve prosecution by the state of an individual for an act that has been deemed as a criminal offense. Civil legal matters, on the other hand, involve men and women and businesses attempting to handle legal disputes. In a criminal scenario, the government, by means of a prosecutor, initiates the case, while in a civil case the plaintiff brings the case. Persons convicted of a criminal violation may be jailed, penalized, or both. However, people deemed responsible in a civil legal matter may only have to surrender property or pay damages, but are not jailed.

A “crime” is any act or omission in violation of a public law prohibiting or commanding it. Even though there are some common law criminal offenses, most criminal offenses in the United States are implemented by local, state, and federal governments. Criminal laws vary considerably from state to state. There is, nevertheless, a Model Penal Code (MPC) which acts as an excellent beginning place to obtain an understanding of the basic composition of criminal liability.

Criminal offenses consist of both felonies and misdemeanor violations. Felonies are normally violations punishable by imprisonment of a year or more, while misdemeanors are crimes punishable by less than a year. However, no act is a criminal offense if it has not been previously confirmed as such either by statute or common law. Recently, the list of Federal crimes dealing with conduct extending past state boundaries or having special impact on federal operations, has developed.

All statutes explaining criminal action can be separated into their various elements. The majority of crimes (with the exception of strict-liability violations) encompass two elements: an act, or “actus reus,” and a mental state, or “mens rea”. Prosecutors have got to establish each and every element of the crime to produce a conviction. Moreover, the prosecutor has to persuade the jury or judge “beyond a reasonable doubt” of each fact necessary to constitute the crime charged. In civil cases, the plaintiff must show a defendant is responsible only by a “preponderance of the evidence,” or more than 50%.

Because the liberty of the defendant is at stake in a criminal case, there is a higher burden of proof required.

If you are being investigated or charged with a criminal offense, talk to a local New Jersey defense lawyer about your options. An experienced New Jersey defense lawyer can advise you of rights.

Texas Code of Criminal Procedure 17.441 holds that the judge shall, as a matter of law, order a deep lung device be placed on the vehicle of the defendant if the arrest in question was for a subsequent DWI, intoxication assault, or intoxication manslaughter.  The judge may not order the interlock devices in those circumstances as well if they make a finding that ordering the device is not “in the best interest of justice.”

Although, 17.441 is the only provision of the Code of Criminal Procedure which directly addresses deep lung devices, judges and magistrates have broad discretion to make “reasonable” conditions of bond for “community safety” under Tex.Code.Crim.P. 17.40.  Some magistrates take this as carte blanche to slap deep lung devices on first DWI offenders in random situations.

If a magistrate has unreasonably placed an interlock device on the driver’s car after a DWI arrest, that decision can often be amended or changed by the trial judge at a later point while the accused is on bond pending charges.

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.

DWI punishment isn’t a walk in the park, but it’s not quite that bad.

A first offense is a class b misdemeanor — which is in the middle of the misdemeanor range.  It’s punishable by a minimum confinement of 72 hours jail and/or a $2,000 fine.  While no lawyer can guarantee you any particular result, statistically the vast majority of convictions on first DWI arrests result in probation.  This means that any jail time assessed may be put off while you complete community service and various other tasks such as a victim impact panel.  There is no deferred adjudication for DWI cases in Texas on any level.

Also if you’re convicted of DWI in Texas for a first offense — you will be assessed a surcharge for three years to retain your driver’s license of $1,000.00.  If you have a breath test result of above a 0.15, then the surcharge is bumped to $1,500 per year.

What I’ve been describing so far are the criminal aspects of a DWI.  The driver’s license suspension for a breath test refusal is a separate, civil matter, but is usually handled in conjunction with your DWI defense.

As you can see the legislature used the word “or” between subsection (A) and (B).  This means that you can be charged with DWI where the officer believes you “do not have the normal use…” regardless of whether a breath test was taken — and regardless of whether a breath test result was below 0.08.

Technical Supervisors, who are the state’s “breath test experts” at trial have training on alcohol, it’s effects on the body, and it’s effects on driving.  They testify, in general, that no one has the “normal use” above 0.08 for the purposes of operating a motor vehicle and some lack the “normal use” below 0.08.

The end analysis is simple — if the officer says you’ve lost the “normal use,” then you are getting arrested for DWI regardless if you blow a 0.11 or a 0.06.

As a former Collin County Prosecutor and as a Criminal Defense Lawyer in Dallas and Collin Counties, I have yet to see or hear of anyone that got taken back to the police station for DWI, was asked to take a breath test, and wasn’t charged with DWI regardless of the result.  Maybe it has happened.  I’ve just never heard about it.

This is part of the lose-lose equation which is the breath test.  And then the police actually wonder why people refuse the breath test all the time.

Several ways.  What makes the identical act of driving a motor vehicle in a public place while intoxicated (which is normally a misdemeanor) a felony is generally additional or surrounding factors.

It is important to note that every jail term I describe below may be probated in certain circumstances.

DWI with a minor 15 years-old or younger is a State Jail Felony punishable between 180 days and 2 years jail and/or a fine not to exceed $10,000.

If you’ve been convicted of DWI two times before, then the third DWI is a 3rd degree felony carrying a possible prison sentence between 2 and 10 years and/or a fine not to exceed $10,000.  Additional convictions pile-up like bricks with the enhancements getting progressively harsher.  For details on specific enhancements for a 4th DWI or greater, consult an attorney.

Intoxication assault is typically a non-fatal accident where someone is seriously hurt or disfigured and is a 3rd degree felony.  The prosecution must prove not only that the defendant caused the accident, but the accident was caused by the intoxication — and that a person suffered “serious bodily injury.”

Intoxication manslaughter is the same as intoxication assault, except that the accident causes someone to die.  It is a second degree felony carrying a sentence between 2 and 20 years prison and a fine not to exceed $10,000.

The Texas Legislature has allowed for the “stacking” of punishments for intoxication assault and/or manslaughter.  What this means is that if there is more than one victim (hence multiple counts), those punishments can be added together whereas most felony punishments run concurrently (or together).

Enhancements for felony punishment can be complex in Texas, so it’s essential to discuss the specifics with an attorney.

A first DWI in Texas is a Class ‘B’ misdemeanor.  A first DWI conviction in Texas is not a felony.  Even as a misdemeanor it stays on your criminal record forever.

The punishment range for a Texas DWI is between 72 hours an 180 days of jail and/or up to a $2,000 fine.  Don’t panic!  That time is usually probated — meaning you’re on probation for DWI and only if you violate your probation do you look at going back to jail.  The maximum time you can be on DWI probation is 2 years.  I can safely say in my experience as a prosecutor and a DWI defense lawyer the vast majority of persons arrested for DWI spend no time in jail after their original arrest.  Of course, no lawyer can guarantee you any result.

With the punishment range as it is, your lawyer must admonish you that it is legally possible for you to be assessed 180 days and a $2,000 fine.  This is not to minimize the consequences, but most experienced DWI lawyers in Dallas and Collin Counties will tell you that result is highly unlikely.

You should also be aware that if you’re convicted of DWI and your breath test result was a 0.15 or above, you’re legally required to have a deep lung device installed on your car for at least half of the probation period.

Also there is a surcharge for renewing your driver’s license of $1,000 upon conviction for 3 years following the conviction.  The surcharge goes up to $2,000 per year if your breath and/or blood is a 0.16 or higher.