Arnold Chiari Malformations As Regards Your Brother-in-Law

[Guest guest]

Hi,

We just received a phone call from your sister explaining the situation with

your brother-in-law's situation with the DWI case and its outcome.

I have checked all of our on-line information sources and cannot find any

similar situations. As I promised your sister, I then contacted our support

group of 1800 members. I am getting significant feedback with the major

comment/question being was there a blood alcohol test done. Based on Texas DWI

law, a negative test should have exonerated our fellow Chiarian.

Apparently according to Texas DWI law (see below), a blood alcohol test may not

be necessary for conviction.

" The Texas legislature has specifically defined the term " intoxication " , as that

term is used for prosecution of DWI cases {Texas Penal Code §49.01(2)}. There

are two definitions to encompass those who do or do not submit to chemical

testing:

1) " 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

2) " having an alcohol concentration of 0.08 or more. "

It is important to note that the law provides for intoxication by the

introduction of any intoxicating substance into the body. This is designed to

make our roadways safe from dangerous drivers. Typically, proof at trial is

restricted to alcohol unless some statements or other indications suggest that

the driver has become impaired by some other substance. It is important to note

that being on prescription drugs is not a defense to a DWI prosecution. If the

label suggests that ingestion will impair one's ability to operate a motor

vehicle or machinery, taking such medicine and driving may subject you to DWI

arrest and conviction. At trial, the State therefore may prove intoxication in

three (3) different ways:

- not having the normal use of physical faculties OR

- not having the normal use of mental faculties OR

- having an alcohol concentration of 0.08 or more.

The jury does not have to be unanimous on the manner and means of intoxication,

only that the person was intoxicated. It is also important to note that

intoxication must occur and be proven to occur while driving.

Many other States provide for prosecution of a " lesser included " offense other

than DWI (i.e. reckless driving, impaired driving, driving under the influence,

etc.). Texas however has no lesser included offense of DWI. Some counties offer

plea bargain agreements to other charges than DWI, but they are the exception

and not the rule. "

In this case, it was very important to have the blood alcohol test done. If it

was, your sister's lawyer should have a good case in appealing the sentence. If

not, then it would appear medical expertise needs to be obtained starting with

the doctor who diagnosed the Chiari malformation. There is significant medical

literature for example on ACM's causing eye focus/nystagmus and straight line

walking stability problems.

Bernie Meyer, WACMA staff, diagnosed in '89, Not decompressed

, age 61, married 32 yrs, wife Judy, three kids, ages-

25, 28, 30, symptoms of tinnitus and minor balance problems are

stable