One of my prosecutors has been harrassing me to change our stadard DWI charging language to the new "Post-Barbernell" language of just alleging intoxication without the usual litany of alcohol, drugs, etc, etc.

In looking at our spiffy new charging manuals, however, I notice the old language options still remain.

For those who have taken the leap, advice? Warnings? Cautionary tales?

For those who have not, why not?

As always, many thanks in advance.

To me the issue comes down to how to charge the jury. Whether the nature of the intoxicant is alleged in the indictment or not, I think the court will have to limit it to whatever is shown by the evidence in the charge or you run into problems. The decision how to allege may affect what you can say during voir dire too. Still seems the better practice may be allege your theory in the indictment, rather than just "while intoxicated."

"then and there operate a motor vehicle in a public place wihle intoxicated"

I switched. I have had no problems, complaints or meaningless motions to quash. The Court of Criminal Appeals has spoken, so why not simplify it?

I fail to see why a prosecutor would be legitimately barred from discussing the legal definition of intoxication, including the .08 BAC presumption of intoxication in voir dire, simply because his indictment only alleges "intoxication" and does not go into the evidence of intoxication the state intends to use.

An indictment that alleges every conceivable means of intoxication has no advantage or disadvantage over an indictment that stops as merely alleging "intoxication." I just don't see the need for all that clutter in an indictment.

Of course, if you have a fool for a judge, then all bets are off, and I guess you have to allege everything.

That's how I see it. Have I missed something?

I like using just 'intoxicated'. It leaves the door open for anything that may come out of a witness's mouth during testimony. I've actually seen a case where alcohol was alleged (no test), but testimony came out during trial about marijuana use (from a defense witness). Since it wasn't alleged, the jury was instructed to disregard and not consider it as a basis for being intoxicated. And rightly so under that indictment.

Seems to me that you'd better be clairvoyant before you routinely paint yourself in a corner. Is there a downside to using just 'intoxicated'?

We switched to just "while intoxicated" and haven't had any problems I'm aware of. You can still discuss the different types of intoxication to your jury during voir dire and define it in the charge. I don't see any reason TO include it if we don't have to.

We have just alleged "intoxicated" since the day after the case came out and have waived the extraneous language in older charges when it suited our facts. No issues or problems to report from Tarrant County