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DWI & DUI

The measurement of “driving while intoxicated” (DWI) by alcohol or narcotics is reliant on a person’s blood alcohol concentration (BAC), which must legally be below 0.08%. A person whose BAC is higher is by law considered impaired. In the case of drugged driving, driving while under the influence of narcotics, the assessment depends on other measures, including so-called Standardized Field Sobriety Test. A person who is under the legal age limit for consuming alcohol, and is apprehended with any traceable amount of alcohol in his/her system while operating a motor vehicle is classified under the “zero tolerance” law as “driving under the influence” (DUI).

Causes and Trends

Causes and Trends of Driving While Intoxicated/Driving Under the Influence

Drunk driving accidents are the outcome of poor judgment and irresponsible behavior. What makes the severity of the damages, loss, and personal injury so tragic is that drunk driving is entirely preventable – what is required is caution, reflection, and forethought.

Psychiatric Disorders and Substance Abuse

As difficult as it is to ascertain why a person chooses to engage in certain kinds of behavior, particularly knowing that those behaviors are dangerous and illegal, it is even more difficult to say how those choices relate to the person’s psyche, and the pathologies (or illnesses) thereof. Some studies indicate that there may even be a link between certain genetic configurations and the etiology, or causes for the disease of addiction. 1 More directly, sound research attests to a link between DWI/DUI recidivism and substance abuse, and a link between substance abuse and psychiatric disorder, what doctors call “comorbidity.” Comorbidity is the manifestation of two distinct but related medical conditions, such as substance dependence and depression or manic bipolar disorder. For the purpose of a DWI/DUI case, the psychiatric condition of the offender may be acutely relevant. A study involving data from tens of thousands of clients in treatment centers around Texas found that DUI offenders present with an elevated risk for mood disorders, panic disorders, post-traumatic stress disorders, and antisocial personality disorder. These conditions “often result in clinically significant impairment and distress in a range of important areas of functioning, including social and occupational capacities.” 2 The study also indicated that a psychiatric disorder may have a negative effect on a person’s completion of substance abuse treatment, and an exacerbating effect on a person’s tendency for recidivism.

Impaired Judgment

Since the 1980s, a number of national and state-wide public service campaigns have made significant strides toward creating a general attitude against drunk driving. Most people report negative views on driving after drinking. Yet the statistics of the frequency and scope of the DWI/DUI problem remain high. At least 1 out of 5 people reports having driven a car less than two hours after drinking alcohol in the past year. What skews the research data to some degree is that in most studies, participants are asked about the dangers of DWI/DUI while sober, despite the fact that the decision to drive after drinking is made under the circumstances of inebriation. Drawing attention to the issue, one study found that the participants’ perceived danger of DWI/DUI decreased significantly with increasing levels of intoxication. In short, most people view DWI/DUI as less dangerous when they themselves are not sober, making them more likely to engage in an illegal and unsafe behavior.

Evidence and Policing

Evidence and Policing of DWI/DUI

Gathering evidence in order to litigate a case of DWI/DUI is complicated by the criminal investigation that prosecutors and law enforcement may be developing. As a consequence, the victim of an intoxicated or drugged driver may have insufficient evidence to demonstrate that the driver was under the influence of a controlled substance at the time of the crash. Further, the evidence process may be especially onerous depending on the kind of impairment test findings (such as breathalyzer data) are available. The arresting authorities may be reluctant to share the information collected at the site of the crash, including audio and video recordings.

Probable Cause Affidavit

Perhaps the most important evidentiary document in a DWI/DUI case is the probable cause affidavit, which contains a detailed statement from a commissioned peace officer representing the Texas Department of Public Safety. Written by an arresting officer, the affidavit states the nature of the offense, for example a Class B Misdemeanor like “operating a motor vehicle in a public place while intoxicated.” The probable cause affidavit then describes painstakingly what prompted the officer to conclude that the driver was impaired. For example, it may describe why the driver was pulled over, how he/she reacted to the stop, whether he/she was able to exit the vehicle and stand upright for a sobriety exam, how he/she performed during the exam, etc. The affidavit may also list other useful information, such as whether other passengers were in the vehicle driven by an intoxicated driver, endangered indirectly by the driver’s poor judgment.

The information contained in a probable cause affidavit is invaluable in the process of developing a DWI/DUI case on behalf of a victim who may otherwise have trouble demonstrating the driver’s grossly negligent and extremely dangerous behavior. A probable cause affidavit may also make the difference between an expedient trial or settlement, and a lengthy and uncertain process.

No Refusal Initiatives

No Refusal programs were in effect in Austin, TX almost every weekend during the spring of 2017. The programs are a safety initiative designed to expedite the process of acquiring a warrant for a sobriety test. Generally, a warrant is required for law enforcement to gather a specimen of any kind, including a breath test, or other bodily substances such as saliva or blood. During a No Refusal time-period, a “roving magistrate” issues warrants for officers’ probable cause instantaneously, foregoing what typically happens during a road-side stop, viz., that the suspect refuses to submit to sobriety testing.

According to the Austin Police Department, “As with previous No Refusal initiatives, during these dates/times there will be detectives available to assist in applying for a blood search warrant in those cases where a suspect under arrest for DWI refuses to provide a voluntary sample of breath or blood. By expanding the No Refusal initiative to all weekends instead of just holidays, APD hopes to deter drinking and driving when it is most likely to occur. The expansion of the initiative is made possible by grants from the Texas Department of Transportation.” 4

No Refusal programs provide hard evidence for attorneys who advocate for drunk drivers’ victims. They mean the difference between a weak argument and a solid case against an egregiously dangerous person’s illegal action.

Legal Procedure

Legal Procedure in DWI/DUI in Commercial Motor Vehicle Cases

When a person over the age of 21 drives a car while impaired by drugs or alcohol, the responsibility for the illegal action falls on the acting person. If he/she had various alternatives, such as taking a taxi or using a ride-share (Lyft, Fasten, Uber), was aware of the extreme risk of DWI/DUI, but decided consciously to proceed to drive while intoxicated, this is a grossly negligent behavior. In court, establishing gross negligence may be the deciding factor regarding punitive damages, a judgment designed to penalize an offender. In the case of a deliberate act by an independent adult, responsibility belongs to the primary agent, the drunk driver.

DWI/DUI cases highlight the difference between compensatory damages and punitive damages. Compensatory damages afford a victim the right to recover losses with respect to property and personal injury. Punitive damages, however, are a legal mechanism of punishment. It clearly signals gross negligence, an egregious act in which the agent (driver) had objective as well as subjective knowledge that the action (DWI/DUI) had a high likelihood of leading to a catastrophic event. For DWI/DUI cases, objective knowledge refers to the general awareness shared by most adults that intoxicated driving is dangerous. Subjective knowledge refers to an individual’s explicit acknowledgment that he/she knew the dangers of drinking and driving, but chose to drive under the influence anyway.

Respondeat Superior

Respondeat Superior is a Latin legal concept meaning “let the master answer.” It was instituted to place accountability, or more technically “vicarious liability,” for certain actions with those responsible, not for the action itself but implicitly for the agent. A simple example is when the parents of a minor are liable for the actions of their child, including in cases of DUI. If a minor drinks, drives, and causes personal injury and/or material damages, a victim of these destructive activities may seek recovery of losses from the parents, the legal “masters.”

This kind of relationship, and its consequences for liability, may also apply to employers and employees. For example, a commercial motor vehicle carrier (a trucking company) may be held liable for the actions of its employees (drivers) as long as the event in question—such as a crash caused by a driver impaired by drugs or alcohol—happened within the scope of employment. In other words, an employer may be held accountable for the risky and illegal behavior of an employee, which may have major impact on a personal injury case of DWI/DUI. Even in cases where there is no contract of employment, “vicarious liability” has been extended in the UK when there is a sufficient connection between the offense (the DWI/DUI) and the relationship between the acting person and the responsible party. 5

To understand some of the legal conditions for commercial drivers, it is instructive to think of a vehicle as a tool, and to think of the driver’s employer as the owner of the tool. A car or truck is inherently dangerous, particularly when entrusted to someone whose credentials and trustworthiness largely determine safety practices. The employer, for example the owner of a fleet of trucks used for commercial transportation, allows an employee to drive a vehicle for the purposes of executing his/her job. The owner/employer may be assigned “vicarious liability,” or accountability for what happens when the truck is in operation, that is, when the tool is being used. In some cases, the “dangerous instrumentality” doctrine has been extended to cover motor vehicles, holding owners responsible for the actions of those to whom they have entrusted the instrument, the vehicle.

Negligent Entrustment

Central in this matter is the concept of “negligent entrustment.” It may be possible to legally demonstrate that an employer (a corporate entity, a commercial carrier, etc.) must be held vicariously liable for an employee’s unlawful and extremely dangerous behavior insofar as he/she chose to entrust an unreliable person with tasks that involved public risk. Employers are responsible for screening, training, and evaluating their employees. If a person who is unfit to drive a motor vehicle or operate machinery is authorized to do so by his/her employer, then, by law, the employer may be penalized for failing to complete the due diligence of management and oversight.

Determination of Cause

DWI/DUI cases may be complicated by the issue of the exact wrong-doing, which is part of the reason why having competent attorney representation is imperative. There is much dispute in courts regarding how to manage the so-called causation requirement, which references the establishment of a compelling link between the driver’s intoxication, the driver’s actions during the drive, and the victim’s personal injury or death. For example, if an intoxicated driver is involved in a fatal crash, and his/her defense attorney attempts to argue that the crash (and the fatality) was caused not by intoxication but by some external factor (such as a defective signal at an intersection), then it may be difficult for the jury to judge how responsible the driver really was. Moreover, it may be difficult to convince a jury that it was the intoxication specifically that caused the driver’s behavior before and during the incident. Professor Eric Johnson notes that courts and scholars often recognize that a DWI/DUI “defendant’s conduct will qualify as a factual cause if it contributed incrementally to the causal mechanism behind the victim’s injury, even if the defendant’s contribution is not itself a ‘but-for’ cause of the injury.” 6 This means that a skilled attorney may be able to convince a jury in a DWI/DUI case that the driver was part of the causal mechanism of the crash, without having to prove that, if not for the driver’s intoxication, the fatal event would not have happened. This kind of case development is exceedingly difficult without legal expertise and experience.

Federal Lands Jurisdiction

A portion of DWI/DUI cases in Texas are prosecuted in federal courts as opposed to state courts, depending on where the offense took place, and the statues that govern that location. The U.S. Department of the Interior sets regulations for traffic safety in territories of federal jurisdiction, including National Parks. The state of Texas has thirteen national parks, fifteen national wildlife refuges, four national forests, and two national grasslands. These include popular tourist destinations where DWI/DUIs are common, such as Padre Island National Seashore. In an article discussing “Issues Concerning Charges for Driving While Intoxicated in Texas Federal Courts,” Judge Brian L. Owsley concludes, “The prosecution of a charge for driving while intoxicated or a conviction for the same offense in Texas federal court is very similar to that in Texas state court. However, the slight differences in pursuing these criminal actions can have significant consequences, such as the different sentence a defendant faces or the rules and laws that apply to a given case.” 7

References

1 Kevin M. Beaver and J. C. Barnes, “Genetic and Nonshared Environmental Factors Affect the Likelihood of Being Charged with Driving Under the Influence (DUI) and Driving While Intoxicated (DWI),” Addictive Behaviors 37 (2012): 1377-1381.

2 James Freeman, Jane Carlisle Maxwell, and Jeremy Davey, “Unraveling the Complexity of Driving While Intoxicated: A Study into the Prevalence of Psychiatric and Substance Abuse Comorbidity,” Accident Analysis and Prevention 43 (2011): 37.

3 David H. Morris, et al. “Perceived Danger While Intoxicated Uniquely Contributes to Driving After Drinking,” Alcoholism: Clinical and Experimental Research 38 (2014): 521-528.

4 No Refusal Weekend

5 Marianne Tutin, “Vicarious Liability: An Ever Expanding Concept?” Industrial Law Journal 45 (2016): 556-664.

6 Eric A. Johnson, “Wrongful-Aspect Overdetermination: The Scope-of- the-Risk Requirement in Drunk-Driving Homicide,” Connecticut Law Review 46.601 (2013): 3.

7 Brian L. Owsley, “Issues Concerning Charges for Driving While Intoxicated in Texas Federal Courts,” St. Mary’s Law Journal 42 (2011): 15.

Drunk Driving Accident

Causes, trends, evidence and procedures.

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DUI Recidivism

Objective measures of addiction and abuse

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DUI Intervention Program

Intervention programs, preventative measures and more.

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Field Sobriety Test

Types of field sobriety tests and more.

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Drugged Driving

Drug use, detection, policing and more.

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DUI vs DWI

Learn the difference between the two.

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