Austin American-Statesman

Drunken-driving law biased against alcoholics, man argues after 4th DWI

Court rejects claim heavy drinkers have higher tolerance.

- By Chuck Lindell clindell@statesman.com

After his fourth driving while intoxicate­d conviction in 2016, a San Antonio man tried to overturn his four-year prison sentence by arguing that Texas’ legal limit on drunken driving discrimina­tes against alcoholics.

Ralph Alfred Friesenhah­n argued that the state’s driving limit of 0.08 blood-alcohol level ignores the higher tolerances that frequent drinkers have to the effects of liquor, allowing the “protected class of alcoholics” to be prosecuted without having to prove that they had lost control of their mental or physical abilities.

The Austin-based 3rd Court of Appeals wasn’t buying it, ruling Friday that the state’s drunken-driving limit does not unfairly single out alcoholics because it applies equally to all drivers.

Friesenhah­n not only failed to present evidence that alcoholics are a protected class under the Americans With Disabiliti­es Act or other federal law, he also failed to prove that the law treats alcoholics differentl­y from other DWI defendants, said the opinion by Justice Cindy Olson Bourland.

“Instead, he argues that they ‘should’ be treated differentl­y ... and thus fails to establish an equal-protection violation,” Bourland wrote.

Friesenhah­n was arrested after a state trooper was called to a single-car rollover accident along a rural Comal County road south of New Braunfels. Multiple blood tests later indicated that he had a blood-alcohol level of 0.29 — more than 3½ times the legal limit.

His trial lawyer, Gina Jones of New Braunfels, moved to quash Friesenhah­n’s indictment, arguing that the legal driving limit discrimina­ted against alcoholics, but state District Judge Jack Robison denied the request.

After Friesenhah­n was convicted of felony DWI because of his prior alcohol-related conviction­s, Jones made the same argument on appeal, leading to Friday’s 3rd Court of Appeals decision upholding Robison’s ruling. Jones did not respond to an interview request left with her office Friday.

Sammy McCrary, chief of the felony division for the Comal County criminal district attorney’s office, said it was ridiculous and misleading to suggest that the law treats alcoholics differentl­y.

“You’re not being punished for being an alcoholic. It’s the driving that’s the problem,” McCrary told the American-Statesman. “It’s making the decision to get into a 3,000-pound vehicle ... after drinking.”

Trial records show that Friesenhah­n also was convicted for driving while intoxicate­d in Victoria County in 1985 and Bexar County in 1990 and 1998, McCrary said.

The Legislatur­e lowered the state’s legal driving limit in 1999 from a blood alcohol level of 0.10 to the current 0.08 — a limit eventually adopted by every state, and pressure is on to go even lower. The National Transporta­tion Safety Board has recommende­d that states reduce the legal limit to 0.05.

Last year, Utah became the first state to cut its limit to 0.05 in a law that takes effect Dec. 30.

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