Automatism and Involuntary Intoxication

While the concepts of Automatism and Involuntary Intoxication may sound similar, they are different in many ways. One focuses mainly on the act itself, while the other focuses more on knowledge of the act.

Automatism

Automatism is related to, but different from, the insanity defense. While insanity deals with whether a person does or does not know his action is wrong, Automatism deals with whether the person was conscious of the act at all. The Court in Mendenhall v. State, 77 S.W.3d 815 (Tex.Crim.App. 2002) defined Automatism (citing a legal treatise) as:

“[O]ne who engages in what would otherwise be criminal conduct is not guilty of a crime if he doe so in a state of unconsciousness or semi-consciousness. Although this is sometimes explained on the ground that such a person could not have the requisite mental state for commission of the crime, the better rationale is that the individual has not engaged in a voluntary act.”

In Law School, first year students (“1Ls”) learn the two general parts of a criminal act: the “mens rea” (mental state) and the “actus reus” (physical act). Automatism goes towards the “actus reus” in that the defense claims the act itself was not voluntary. An example of this would be if a person was having a seizure and hit someone nearby in the face. The person having the seizure may have assaulted someone, but the assault was the result of something that was not in his control and was not voluntary. Conversely, a person in a mosh pit at a concert that hits a person outside the pit in the same way would not have this defense, as the action itself was voluntary.

Involuntary Intoxication

The general rule for intoxication is that ‘voluntary’ intoxication is not a defense to a crime. In other words, going to a bar and overdrinking doesn’t mean that you can use being drunk as a defense. Involuntary Intoxication occurs, generally, when a person does not know about or someone forces them to consume the intoxicant. A good example of this is a “spiked” drink. This defense goes towards the “mens rea” for the crime, and acts similar to claim of temporary insanity. The idea is that one may perform a voluntary act, but not have the required mental state for the crime.

Using the same seizure example as Automatism, imagine that the person had a seizure because of a medication that was slipped into his breakfast that morning without him knowing. Even though he physically assaulted the other person, he lacked the required mental state because he was involuntarily intoxicated.

Different Facts Make a Huge Difference for Automatism

Imagine, in contrast, that he knew the side effects of each medication, but just took the wrong one that morning. Now, according to most case law, he cannot benefit from either defense. This is because he had the knowledge that his medication could cause intoxication, and did the “voluntary act” of taking his medication, even if he took the wrong medication. Essentially, those facts show voluntarily intoxication. Remember, though, that these are very general examples and each case can be very different from another.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

DWI Manslaughter Oddities

DWI Manslaughter is in a strange gray area of the law. Is it a DWI? Or, is it closer to a murder or manslaughter? In many ways, DWI Manslaughter is just a DWI involving death.

DWI Manslaughter and the Statute of Limitations

However, for the statute of limitations, which is how long the State has to bring charges, DWI Manslaughter is closer to murder. For context, the statute of limitations for misdemeanors (including first- and second-time DWIs), is 2 years. Meanwhile, felonies have varying lengths depending on the type of crime, but the general statute of limitations for felonies is 3 years. Felony DWIs (including Intoxication *Assault*) fall into this 3 year limitations period. However, DWI Manslaughter does not fall into the same period, as case law considers DWI Manslaughter to be the same as murder/manslaughter. This means there is no limitations period for DWI Manslaughter, meaning the State can prosecute you no matter how long ago the arrest occurred. Texas Code of Criminal Procedure 12.01.

DWI Manslaughter and DWI Enhancement

In general, a DWI becomes a felony only when there is a child passenger or when a person has 2 or more DWI convictions on their record. But, while rare, there is a another way for a DWI to become a felony. This occurs when a person has a DWI Manslaughter conviction on their record. In this situation, the next DWI becomes a “Felony Repetition” even though it may only be a second-time DWI. In other words, a DWI Manslaughter conviction (in a way) counts as 2 prior DWI convictions.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

Holiday DWI

Any holiday, no matter how major or minor, is a risky time to be on the road. Police tend to be out in full force for Holiday DWI arrests. In fact, many holidays in Texas are called “no refusal weekends” to try and scare drivers. However, “no refusal weekends” are a lie. You always have the right to refuse and force the police to get a warrant to draw blood. This is the same thing that happens every day of the year, not just on holidays.

That said, holidays tend to be the time when police are actively searching to pile up Holiday DWI arrests. This means that the slightest mistake (e.g., checking your phone, feeling tired, or even a slight jerk of the wheel from sneezing) could lead to the lights coming on and a DWI investigation. We always recommend that people drink responsibly and drive responsibly. But, keep in mind that you always have rights, especially on holidays.

During any DWI, especially a holiday DWI, you have the right to:

• Refuse to perform any Standard Field Sobriety Test;
• Refuse to give breath and/or blood (forcing police to get a warrant to draw blood);
• Not answer any questions; (Keep in mind, though, that a request for ID is not a question, meaning you cannot refuse to provide ID. Failure to ID is a separate ticket.)
• Ask if you are free to leave. (If police say “no”, then they have detained you which prevents police from claiming a voluntary encounter.)

If police arrest you for DWI during a holiday weekend, give The Coffey Firm a call and we can schedule you for a free consultation to discuss your rights and your options. A holiday DWI does not make you a bad person. Holidays exists to for us to celebrate, so we will help you through this.

**HALLOWEEN NOTE: POLICE ARE OUT IN FULL FORCE LOOKING FOR HALLOWEEN DWI ARRESTS. IF YOU ARE ARRESTED FOR A HALLOWEEN DWI, PLEASE CONTACT OUR HALLOWEEN DWI LAWYERS AT 817-831-3100 TO SCHEDULE A FREE CONSULTATION.**

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

ALR Notice Update

ALR Update

Here is an important ALR Update: Recently, the State Office of Administrative Hearings (SOAH) has moved to using eFile for ALRs. Before then, SOAH handled everything by fax. This move to eFile has caused some issues for both DPS and ALR Lawyers. Recently, DPS has sent Amended Notices of Hearing to our clients rather than to our office. The Amended Notice of Hearing is the letter that provides the ALR second setting after the first setting is “5 day’d” (meaning we use our 5 day continuance that we are entitled to request). While our office receives the new dates through an eFiled order, the letters still appear to be going out. This appears to be a change by the main DPS headquarters in Austin.

Because of this, please keep an eye on your mail for any DPS letters. If and when you receive anything from DPS, let our office know so we may note it in your file. After requesting the hearing, our ALR Lawyer will provide important ALR Updates during the process. As always, feel free to contact our offices if you have any questions.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

Golf Cart DWI

Occasionally, police make DWI arrests for people driving a golf cart. However, whether a golf cart satisfies the requirements for a DWI is a strange question. DWI requires 1) operating, 2) a motor vehicle, 3) in a public place. Driving a golf cart would count as operation. However, is a golf cart a “motor vehicle” for purposes of a DWI? Also, what is a “public place” in relation to golf carts?

What is a ‘Public Place’?

Unfortunately, the “public place” requirement is a somewhat low bar, as courts generally hold that any place that is readily accessible by the public is, well, “public”. This means that private, gated communities have been held to be “public” since the public has access in select situations (e.g., going into the community by accident while the gate is open). This would also mean that sidewalks and golf courses, even if private, might satisfy the “public place” requirement.

Is a Golf Cart a ‘Motor Vehicle’?

However, the real issue is whether a golf cart counts as a “motor vehicle” for DWI. The technical answer is “yes,” but it probably should not be. The DWI definition statute defines “motor vehicle” as having the meaning assigned in 32.34(a) (‘Fraudulent Use of a Motor Vehicle’). That statute, in turn defines “motor vehicle” as:

• ‘a device in, on, or by which a person or property is or may be transported or drawn on a highway [except devices which only use rails or tracks]’.

Texas Transportation Code 541.302 defines “Highway or street” as “the width between boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel”. Section 545.0651 defines “highway” as:

• being in the designated state highway system;
• being designated a controlled access facility; and
• has a minimum of three travel lanes in each direction of traffic (except access/frontage roads).

A golf cart has the means to transport people and property. But, would a golf cart actually be operated on a “highway” as defined above? Perhaps, but semi-public areas like golf courses don’t seem to fit the definition.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

The Problem with Aggravated Assault and DWI

The law is very unethical when it comes to Aggravated Assault when mixed with DWI.

Intoxication Assault

There is a specific crime, called “Intoxication Assault,” that combines assault with DWI and is a 2nd degree felony. Intoxication Assault requires serious bodily injury (SBI), which generally means broken bones, amputations, and other injuries that one might consider serious. A simple accident involving some cuts and bruises is not enough for Intoxication Assault, meaning the State should only have the ability to charge for DWI. There is one major problem with this, however.

Aggravated Assault

Even if the State cannot prove SBI, they law provides a work-around in Aggravated Assault (also a 2nd degree felony). The general perception of Aggravated Assault is that it, too, requires serious bodily injury. This is not the truth, though. Aggravated Assault requires either Serious Bodily Injury OR using/exhibiting a deadly weapon. Unfortunately, a car can be a deadly weapon. This means the State will nonsensically charge you for BOTH Aggravated Assault and DWI. Even more nonsensical, this means that just about any DWI involving an accident could be an Aggravated Assault. The legislature could not possibly intend for such unethical use of the law. This is a very real problem for Texas DWI.

***** THE COFFEY FIRM ALWAYS INTENDS TO HOLD THE STATE TO ITS BURDEN OF PROOF. THE STATE STILL NEEDS TO PROVE (AT THE LEAST) “RECKLESSNESS” AS PART OF THE ASSAULT. RECKLESSNESS MEANS CONSCIOUS DISREGARD OF SUBSTANTIAL OR UNJUSTIFIABLE RISK. INTOXICATION IS NOT RECKLESS PER SE, MEANING PROOF OF INTOXICATION DOESN’T “PROVE” RECKLESSNESS.

Heavy Winds and DWI

Be Careful! Heavy winds and DWI or BWI are often related.

Heavy winds and DWI sometimes go together because heavy winds can have a large effect on a person’s ability to drive. A common reason for a DWI stop is “swerving,” but there are many potential reasons for that aside from intoxication. Heavy wind is one of those potential reasons. This can often be more true for Commercial Truck Drivers.

With Texas weather, there can sometimes be no telling when a storm will hit. But, almost anyone who has decided to drive during a storm will say that heavy wind can be dangerous. Even outside of a storm, it only takes about 20 – 30 mph winds to have a slight effect on driving. When the wind speed rises to 40 – 60 is when the effect truly becomes serious. With winds at those speeds, most drivers would have to be extra careful while driving. Meanwhile, CDL drivers risk overturning due to the high center of gravity such large trucks have.

When Mimi evaluates a DWI case that involves swerving (or even certain DWI accidents), the weather at the time of arrest is one of the factors she considers. This is true not only for the “driving” stage of a DWI arrest, but for the SFSTs as well. If the wind is heavy enough to contribute to swerving, then how can the officer expect you to walk a straight line when the wind is knocking you down?! Yet any “staggering” the officer sees during the test will be marked as a sign of intoxication, which is ridiculous!

Heavy Winds and Boating While Intoxicated

Mimi is an avid boater so she knows that heavy wind can also have an effect on boating. Boats are very sensitive to the wind, and most boaters would hesitate to take their boat out on the lake if the wind is 15 mph or more. While boaters may not have the same “weaving” problem as cars, a strong gust may cause collisions, which sometimes evolves into a Boating While Intoxicated investigation.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

5 Scary Facts About a DWI in Texas

1. What? Why are police arresting me for a DWI in Texas even though I only take my prescription?

The State often prosecutes cases when medications in a person’s blood are in therapeutic range. Why? A state toxicologist, without any reference to a person’s medication history (tolerance) will rely on the police report! This is not science. Mimi has won DWI in Texas cases on this.

2. What? Why are police arresting me for Texas DWI when I am responsibly sitting in my car calling an Uber?

Asleep at the Wheel. The police will arrest a person in a parking lot (trying to do the right thing) based on “operating a motor vehicle”. The law does not define operation. Cops think that if the keys are in the ignition this means operating. Not true. Mimi has tried and won cases on this.

3. Are there any legal exceptions to DWI in Texas for an emergency?

Cops will still arrest and charge a person for DWI in Texas even if they are in a “necessity” defense. It is up to us to present and argue the necessity of the defense. For example, if a woman is about to be grabbed in a parking lot, the law allows a limited defense of necessity to escape a greater harm. Mimi has tried and won cases on this.

4. My case isn’t settled, so why is the county punishing me like I’m already on probation?

The cost of a “personal recognizance bond” are often more expensive than just getting a bail bondsman. The often stringent requirements of pretrial supervision makes one feel like the court has already sentenced them. This is an abuse of the courts. The purpose of bond is to secure one’s appearance to court. The law must change. Mimi is running for Texas State House District 99 to bring common sense back to our laws (yes, she will still maintain her practice). Mimi is very passionate about needed changes in the laws.

5. Why am I taking off so much work for court dates where nothing happens?

People lose jobs wasting unnecessary time going to meaningless court dates. Some counties still require court appearances early in the process that can and should be avoided. Much change is necessary to protect people’s jobs and livelihoods as they face charges. The Coffey Firm has been successful in trying to excuse court dates for students and out-of-towners where possible. There is no reason in the 21st century why Texas DWI Lawyers (answering for their clients) and technology cannot minimize unnecessary disruption to an accused citizen’s life where important junctures in the legal process can obtain full accountability in court appearances. Payment up front can expedite this process.

Will You Parole Early? See TDCJ’s Consideration Chart

Convictions involving assaults, specifically family violence, carry a heavier price than many other convictions. Among the most important price is eligibility for parole early. The Texas Department of Criminal Justice has a “severity” chart that emphasizes offenses involving assault, even those you may not first think would count. For example, TDCJ considers Online Solicitation of a Minor an “assault” offense even though that offense does not involve physical contact. While not all of these offenses themselves are “3g” offenses for the purpose of parole eligibility, they are the offenses that very often contain a “deadly weapon” finding, which also impacts parole eligibility.

The TDCJ severity chart can be found at https://www.tcjs.state.tx.us/wp-content/uploads/2019/08/Offense-Severity-Scale.pdf

“3g” Offenses for Determining if you can Parole Early

The “3g” offenses belonged to the now repealed section 42.12. However, the “3g” section of that statute now lies in section 42A.054 with much of the same language. This statute limits a Judge’s ability to grant community supervision. For the purposes of getting parole early, however, this list serves to limit when the inmate becomes eligible for parole.

The “3g” Offenses, for purposes of parole, are:

• Criminal Solicitation (of an offense punishable as a 1st degree felony)
• Murder
• Aggravated Kidnapping
• Trafficking
• Some Trafficking of Persons
• Indecency with a Child
• Sexual Assault
• Aggravated Sexual Assault
• Injury to a Child (if punishable as 1st degree)
• Aggravated Robbery
• Certain Burglar
• Aggravated Promotion of Prostitution
• Compelling Prostitution
• Sexual Performance by a Child
• Certain Possession Cases

For purposes of getting parole early, any offense involving a deadly weapon also falls into this category. Organized crime also falls into this category.

In circumstances involving the offenses or other factors mentioned above, the “waiting” period is the lesser of 1/2 the sentence or 30 years. However, the minimum term before becoming eligible is 2 years. Tex. Gov’t Code section 508.145(d).

For most other cases, however, the waiting period is the lesser of 1/4 of the sentence or 15 years. Tex. Gov’t Code 508.145(f).

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.

Texas DWI License Suspensions for Minors

In many ways, Texas DWI is the same for both adults and minors. In other ways, a Texas DWI license suspensions for minors can be more favorable.

DWI vs. DUI: What is the Difference?

One thing to keep in mind, though, is that a DUI and a DWI are not the same. A DUI occurs when a minor has any detectable amount of alcohol in their system while driving, but might not be fully intoxicated. A DUI is a Class C Misdemeanor (same level as a traffic ticket). As an illustration, a DUI might occur when a parent lets a minor have a sip of a drink before driving. The minor might only have a very low BAC, but still have enough to show on a breath test.

Meanwhile, a DWI is the real deal, even when a minor drives. Police can arrest a minor for full-blown DWI depending on the circumstances. However, the possible suspension changes slightly depending on whether the driver is a minor or an adult.

Texas DWI ALR License Suspensions for Minors

For ALR suspensions, a minor can receive a 60, 120, or 180 day suspension for “consent” cases (breath/blood failure). The first suspension is 60 days, but can raise to 120 or 180 depending on whether the minor has a DUI or DWI conviction on their record. However, for “refusal” cases, the law treats minors and adults the same. That means a 180 day suspension for a 1st time arrest, and 2 years for the 2nd or more within 10 years.

Texas DWI Criminal License Suspensions for Minors

On a conviction, however, there is a “mandatory” 1 year drivers license suspension for minors. As with other “criminal” suspensions, interlock is a requirement if the minor wants an Occupational Drivers License. However, this suspension is not “mandatory” if the minor receives probation. However, that probation must require the minor to have an interlock regardless of whether the minor gets an Occupational Drivers License. For probation for a minor, the standard license suspension tends to be 90 days.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation. The Coffey Firm offers fair DWI payment plans and free consultations.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.