What is the Loss of Normal Use Myth?

DWI Lawyer Trichter & LeGrand

The Loss of Normal Use Myth begins with the reoccurring story that begins with a responsible citizen finding themselves handcuffed in the back of a police car. 

They tell us they took steps to ensure they would never be arrested for DWI. 

Being responsible, they report that they limited themselves to only one drink an hour and only decided to drive because they felt sober.

A difference in definition

Unfortunately, they learn that Texas police often define intoxication as the “smell of alcohol with a traffic violation.” 

However, the legal definition of “intoxication” is different from the police practice definition of “intoxication.” 

The legal DWI definition often differs between what a citizen understands and what the police and prosecutor practice.

Criminal lawyers in Houston note that the State of Texas defines “intoxication” as the loss of the normal use of mental and/or physical faculties or having a blood or breath alcohol concentration (BAC) level of .08 or more. 

This means that there are three ways a prosecutor can argue that a citizen committed DWI. 

Regrettably, there is a myth for each argument.

Loss of Normal Use Myth

The Loss of Normal Use Myth begins when police and prosecutors decide impairment by looking at mental and physical faculties through the use of DWI balance and coordination exercises. 

They attempt to determine if a person is “normal” or “not normal” because of alcohol or drug consumption. 

A good attorney understands that we all have different physical and mental abilities. 

A prosecutor will argue that juries should use an “average person standard” when deciding if a driver was DWI.

Intoxication defined and the law of “average”

The legal definition for intoxication is where the citizen accused lost the normal use of his mental or physical faculties, and that the loss was due to ingestion of alcohol or drugs. 

However, without regard to individual characteristics, the State will test normal physical and mental faculties of all drivers using the same set of balance and coordination exercises.

In the world of DWI, normal does not mean average and average can mean abnormal. 

For example, in a group of 10 people, five have the shoe size “8,” and  five have the shoe size of “10.” So the average is “9.” 

ut, clearly, nobody in the group is a size 9, so none of them are average! 

The same is true with DWI: judging someone with the average person standard is unfair and unjust.

You either pass or fail

Let’s look at it from a real-life view using the standard school grading system: A, B, C, D, E, and F. Using the same group of 10 citizens as above, five of them are young and normally can do the coordination exercises perfectly and score an “A”. 

The other five are all older and can’t normally do the exercises so they all score “F”. 

The average then is the grade “C” which, in fact, means average. 

In the prosecution argument, “passing” the police coordination exercises requires a grade “A” performances in order to be deemed average (meaning you won’t be arrested). 

Hence, under the police grading system, any citizen who cannot perfectly perform the police motor skill exercises is subject to automatic arrest.

Remember that these tests are performed on the road side, in an environment that has less than perfect conditions. 

You can’t practice, they don’t consider your nervousness, and they don’t explain how they will grade you beforehand.

Does this seem like it’s fair to all people? This is the Loss of Normal Use Myth.

Remember, if you’ve been arrested for DWI and need a strong legal defense, call us 24/7 to speak to an attorney.


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