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Austin’s Third Court of Appeals put the brakes on a repeat drunk driver’s boozy argument that Texas DWI laws are unconstitutional because they unfairly discriminate against alcoholics who are allegedly able to drive intoxicated better than non-drunks.

That novel theory was recently presented by Ralph Alfred Friesenhahn, who was indicted on a felony driving while intoxicated charge in Comal County. Friesenhahn, who has twice been previously convicted of DWI, alleged his indictment should be quashed because Texas laws that define intoxication as having a blood alcohol concentration of 0.08 violated the equal protection rights of alcoholics.

Friesenhahn was represented on appeal by Gina Jones of New Braunfels.

Friesenhahn argued “many of those folks who suffer from the disease of alcoholism are able to maintain normal functioning at 0.08 versus a person who does not [suffer from the disease of alcoholism].”

He also argued that “the time is right for the judicial branch of the government to refocus on these laws to find out if our citizens that suffer from this disease are being unfairly treated versus other members of society.”

The trial court denied Friesenhahn’s motion. He later appealed to the Third Court of Appeals by arguing alcoholism is a disability under the Americans with Disabilities Act, and that Texas DWI laws violate the equal protection guaranteed to alcoholics by the U.S. and Texas Constitutions.

In their Feb. 9 decision, the court concluded that Texas’ DWI laws—including Chapter 49 of the Texas Penal Code setting the 0.08 percent limit—applies to all people charged with that offense equally.

“Therefore, there is no classification in the statute that treats any persons, including appellant’s defined ‘class’ of alcoholics, differently than similarly situated persons: The 0.08 alcohol concentration level applies to all offenders prosecuted for DWI,” wrote Justice Cindy Olson Bourland.

“In essence, appellant does not argue that members of his defined class of alcoholics are treated differently than other DWI defendants under the statutes. Instead, he argues that they should be treated differently,” Bourland explained in her decision.

And “should be” isn’t enough to show constitutional infirmities in Texas DWI laws, Bourland wrote.

“This ‘deserving of different treatment’ argument does not demonstrate that similarly situated persons are treated differently and thus, fails to establish an equal protection violation,” Bourland concluded in a decision rejecting Friesenhahn’s appeal.