Written by attorney James Morris Balagia

Overcharging an Intoxication Assault Case

I call this the old "have your cake and eat it too" way of doing things. A local news station has been reporting on a case involving an underage drinker that was involved in a collision that injured an Austin police officer. The summary of the update on that story is the following: The day after the blood alcohol content of Luis Zuniga was released by APD allegations have already arisen that the teenager was drinking at a local nightclub. TABC will follow up on the question of whether or not Zuniga was drinking illegally at Club Escapade. Zuniga has been charged with Aggravated Assault and Intoxicated Assault with Bodily Injury. APD released a statement that 18-year old Luis Zuniga had a blood alcohol content of .14, almost twice the legal limit in Texas. A computer search shows that Club Escapade was cited in December 2008 for serving alcohol to an already intoxicated person. The Club received a written warning for serving alcohol to a minor. What I find troubling about the story and the case goes beyond an underage, intoxicated driver. I am also bothered that the Austin Police Department would "over charge" the arrested driver. If the teenager was intoxicated and someone suffered serious bodily injury then he should be charged with Intoxication Assault only. By doubling the charges against Zuniga based on the same fact pattern APD is stepping out of bounds from what the legislature set out when they wrote the Intoxication Assault law. I call this the old "have your cake and eat it too" way of doing things. It is a lot like District Attorneys that overcharge someone or charge a higher level of crime than was actually was committed. Then the defendant is given the opportunity to plead guilty to the correct lower level charge in order to avoid a conviction on the higher charge. Sometimes this is done in order to set a very high bond in order to bleed finances from the person in order to prevent them from having money to hire an attorney. Regardless, the proper charge in this matter is Intoxication Assault and then the question for the jury is; can the State prove the case beyond a reasonable doubt?

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