The Elements of the Crime


Elements of the Crime

I have always found that mercy

bears richer fruits than strict justice.


At the end of a jury trial, the jury is told what elements the Government must have proven in order for a person to be convicted of the offense charged. These elements are contained in the jury instructions.

The instructions are not inclusive of every crime possible in the State of Texas. However, they do include the elements for most of the major driving-alcohol related crimes. We do not intend to include all possible jury instructions, just the primary ones that readers of this book will encounter. The instructions are not presented in any order other than the most relevant. If an element has several different choices separated by a forward slash, the Court’s intention is for the jury to be told the choice most relevant to the facts of each individual case.

Most readers of this book will have been charged themselves or had a family member charged with the crime of DWI. The elements of DWI are that a person was: (1) intoxicated (2) while operating (3) a motor vehicle (4) in a public place. The State must prove each and every one of these elements beyond a reasonable doubt.

The Texas Court of Criminal Appeals and/or the Texas Legislature have defined, either by statutes, or case decisions, several of the terms used in the jury instructions.

Intoxication has been defined by the law as either: not having the “normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more.” In the first instance, the State will have to prove beyond a reasonable doubt that you had lost the normal use of your ability to reason or that you had lost the normal use of your ability to control your bodily movement. In the event of a breath or blood specimen, they would have to prove beyond a reasonable doubt that you had a blood alcohol concentration of 0.08 or more.

The case law allows that a jury does not have to agree on which faculty you have lost. Some can believe you have not lost your mental faculties but only your physical ones while other jurors may believe the opposite. Other jurors can believe you have lost neither faculty but believe you are 0.08 BAC or higher. They can mix and match as long as all six jurors (12 in Felonies) believe one of the three manners occurred.

A motor vehicle has been defined as “a device in, on, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks.”

A public place is defined as “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

The term “operating a motor vehicle” is not defined in any Texas statute. Rather the Texas legislators have left the term vague so that it has to be argued in court by attorneys. A Texas court will then determine based on all of the facts, whether you were “operating a motor vehicle.”

In Texas, the prosecutors have at their disposal an additional criminal charge of “Obstructing Highway or Other Passageway.” The prosecutor would have to prove that you: (1) intentionally, knowingly or recklessly (2) obstructed a highway, street, sidewalk, railway, etc. This statute found in the Texas Penal Code Section 42.03 was probably not designed with DWIs in mind, however, it is being used as a charge to stack against you.

Another crime being charged more often is Intoxication Assault. This crime requires the State to prove the defendant: (1) caused serious bodily injury to another (2) by accident or mistake (3) while operating a motor vehicle (4) in a public place (5) while intoxicated. The statute defines serious bodily injury as “injury which creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” This is a felony of the third degree punishable by a sentence of from two to ten years in prison and/or a $10,000.00 fine.

The prosecution may also charge you with “DWI With Child Passenger” if they can prove you were: (1) intoxicated (2) while operating a motor vehicle (3) in a public place (4) and the vehicle is occupied by a passenger who is younger than 15 years of age. This is a state jail felony and you could receive from 6 months to 2 years in a State Jail Prison. That sentence must be served day for day with no good time allowed.

It is important to remember that the State must prove beyond a reasonable doubt each element of the crime being charged. DWI-trained attorneys like your authors will look at each element of the charge and will force the State to prove each and every element of the charge before you are found guilty. If the State is not able to prove any one of the elements, the charge can be dismissed or you will be found not guilty.

Busted?  The DWI Dudes Can Help.

Contact Us Today For Your Free Case Consultation
Help! Me Dudes!
Free Consultation

Busted?  The DWI Dudes Can Help.

Contact Us Today For Your Free Case Consultation
Help! Me Dudes!
Free Consultation