There are certain legal concepts that are such common knowledge to participants in the criminal justice system but not to the general public. One example that comes to mind is the basic procedural step of entering a not-guilty plea, a nearly automatic step in which almost literally every single defendant participates as a matter of course, even the most guiltiest of defendants.

But even I was shocked to discover a lack of awareness by some members of the general public about one concept that I thought was common knowledge: the Prohibited Alcohol Concentration violation. Each state may implement this concept somewhat differently and might use different terminology, but in Wisconsin there are two different flavors of OWI violation: Operating While Intoxicated and Operating With a Prohibited Alcohol Concentration. (Wisconsin uses OWI where other states likely use DWI, DUI, etc. That’s a topic for another post.)

In Wisconsin, there are two elements of OWI: 1) operating a motor vehicle 2) while under the influence of an intoxicant. And there are two elements of a PAC violation: 1) operating a motor vehicle 2) with too much alcohol in one’s blood or breath (.08 for the first offense). These two concepts have quite a bit of overlap, but they are not mutually exclusive. That is, one can be too drunk to drive without being over the legal limit, and one can be over the legal limit without being too drunk, especially when the legal limit goes down for repeat offenders. In Wisconsin, one can be charged with both variations but ultimately cannot be convicted of both; guilty verdicts for both charges can only result in one conviction and one sentence. The upshot of this is that at trial a prosecutor need only win a conviction on one of the two counts in order to obtain the maximum result, but a defendant must win a not-guilty verdict on both counts in order to be acquitted.

I discovered that not everyone is aware of the nuances of this scheme when news of the arrest of commentator, conspiracy theorist, and drain on society Alex Jones was arrested for DWI in Texas earlier this month made its way to Twitter. According the that article, “Jones had a blood alcohol level of 0.076 at 11:55 p.m. and a level of 0.079 at 11:59 p.m.” These numbers grabbed the attention of many users on Twitter who concluded that Jones could never be charged or convicted without a result over .08, the legal limit in Texas for what Wisconsin calls a Prohibited Alcohol Concentration violation. Being the good soul I am, I decided to try to help several Twitter users to understand this concept, mostly with underwhelming results.

You get the idea. Now let me be clear: I am not suggesting that a result under .08 is irrelevant. In fact, if one’s blood or breath alcohol concentration is still going up over time, then it can very effectively be argued that the level was actually lower than the readings in question at the time that the arrestee was actually driving. Remember, the offense is operating while intoxicated, not operating and then being intoxicated later that night. Also, I am not making any suggestion or expressing any opinion about Mr. Jones vis-a-vis this incident. Initial media reports, usually based entirely on information from police officials, are not the most reliable accounts and rarely provide both sides of the proverbial story.

But I was shocked to discover that so many people believed that a test result over the legal limit was an absolute requirement before someone could be convicted of this type of offense. Finally, a shout-out to the one person who affirmatively acknowledged being incorrect about all of this.

God bless you, @BCsknees.