Pretty much every voter in the Lone Star State knows that Robert “Beto” O’Rourke was arrested for DWI in El Paso in 1998. His arrest, and the subsequent disposition, show how much DWI laws have changed in Texas over the last twenty years.
According to the police report, Beto was speeding on Interstate 10 when he lost control of his car, hit a truck, and careened across the median. He was clearly disoriented after the accident. According to one witness, Beto may have tried to leave the scene of the accident. After police arrived, Beto blew a .14 on the Breathalyzer. He later successfully completed a pretrial diversion program.
Different DWI Laws
The BAC limit was .10 in 1998. So, at the time, a .14 was significantly over the limit but not eye-poppingly high.
Furthermore, because of the way the law was written, a collision like Beto’s made it harder to prove DWI in court. Prosecutors had to establish loss of normal use of mental and physical faculties due to the consumption of alcohol. The .10 limit was basically just a presumption of intoxication. If Beto did badly on the field tests, his lawyer could argue that the accident affected his performance more than the alcohol.
Today, the BAC limit is .08, so a .14 is almost twice the legal limit. It’s also very close to an upgraded DWI. The Penal Code 49.04(d) cutoff is .15. Because of the lower limit, prosecutors might be more aggressive today.
Additionally, Texas has a per se law. A BAC above .08 is conclusive proof of intoxication. The other circumstantial evidence does not matter. Today, if you blow a .14, invalidating the Breathalyzer result is basically the only defense. In cases that involve a high BAC, that’s rather difficult to do.
Different DWI Attitudes
Texas had weak DWI laws in 1998. These laws were weakly enforced in rural areas, such as the Texas/New Mexico border along that lonely stretch of Interstate 10. Prosecutors routinely offered pretrial diversion to defendants with no criminal records. Procedure varies by county. But in most diversion cases, once the defendant completes a few months of probation and takes a couple of classes, prosecutors dismiss the charges.
A few elected District Attorneys still allow their assistants to offer these deals today. But these arrangements are few and far between. More often than not, the opposite is true. Several former Dallas County District Attorneys fired their assistants on the spot if they allowed a DWI defendant to take pretrial diversion.
Additionally, if the evidence was weak in a 1998 DWI case, prosecutors might consider reducing the charges to reckless driving. That would rarely happen today. In 2018, prosecutors would rather die with their boots on than reduce DWI charges to a lesser-included offense.
Because of the stronger law and different attitudes, prosecutors are very aggressive in DWI cases. If there is any evidence whatsoever of aggravating circumstances, such as FSRA (failure to stop and render aid), prosecutors will almost certainly enhance the charges. That was not the case in 1998.
If you get a DWI today, you are in for a fight. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. Home and jail visits are available.
