I'm working on a Felony DWI where the Defendant has two priors of DUI - Liquor. One DUI is from 1984 and the other from 1988. The Defendant was over 21 for each offense so she was not a minor when they occurred.

According to the DWI statute under Section 49.09(b)(2), priors must be "intoxicated" offenses. In other words, I'm not clear on whether I can enhance the current DWI offense to a felony since the priors are "under the influence". Is anyone aware of whether I can use the two DUI priors to enhance to felony? I'm not able to find any authority saying either way. Any help is appreciated.

Well, 49.09(c) says what you can use as priors. It doesn't fit under that?

Wolf:

Generally, you will see "DUI - Liquor" or "DUI - Alcohol" on Criminal Histories from before 1990. Something strange about the coding of forms sent to DPS back then.... Don't confuse these with the current Class C Misdemeanor of "DUI-Minor", as that offense didn't exist in the 1980's. You've already ensured that your Def was older than 21 yoa at the time of these offenses, so good deal there. Also, don't be overly concerned with "Under the Influence" vs "Intoxicated".

If you can obtain the Complaint/Information/Judgments from the previous cases, you'll probably find the language to be substantially the same as current law; including the word "intoxicated" (although it will likely read "beach or highway" instead of "public place"), and thus - usable for enhancement. I've run into this issue many times with "old" priors, and have yet to have any significant issues.

Brent nailed it, get the judgments. If you can't find them, well there you go. If they are clearly DWI (notice that public road and highway was replaced with public place) then they should qualify. That minor change is all I remember between the old transportation code during that period and the new provision in PC chapter 49.

I love it when Clay backs me up; I feel so special.