Texas Penal Code 49.05 – Flying While Intoxicated
WHAT IS FLYING WHILE INTOXICATED IN TEXAS?
The Texas law against flying while intoxicated prohibits operating an aircraft while above the legal limit of alcohol or other intoxicant in a person’s system.
- What is the legal limit for intoxication in Texas? Texas Penal Code Section Section 49.01 defines “intoxication” in two ways: (1) a blood alcohol concentration (“BAC”) of 0.08 or more; or (2) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.The subjective definition, or one’s loss of normal use of mental or physical faculties, does not require proof that a person’s blood alcohol concentration was above 0.08.
For example, in Aguirre v. State, the defendant was arrested for DWI, and his blood test later showed a 0.075 blood alcohol concentration. But the other evidence showed he was going 102 miles per hour, had bloodshot eyes, slurred speech, and a can of beer in the car. The defendant also showed several clues of intoxication during the Standardized Field Sobriety Tests (SFSTs). Based on the evidence, the jury found him guilty, and the appellate court affirmed.
WHAT IS THE FLYING WHILE INTOXICATED LAW IN TEXAS?
Tex. Penal Code § 49.05. FLYING WHILE INTOXICATED
(a) A person commits an offense if the person is intoxicated while operating an aircraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Tex. Penal Code § 49.09. ENHANCED OFFENSES AND PENALTIES.
(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
. . .
(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D. For purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.
(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant’s own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Subchapter I, Chapter 42A, Code of Criminal Procedure, this subsection controls.
WHAT IS THE PENALTY CLASS FOR FLYING WHILE INTOXICATED IN TEXAS?
Flying while intoxicated is enhanceable, meaning the penalty classification depends on a person’s prior convictions, if any.
- Class B misdemeanor, punishable by 72 hours to 180 days in county jail:
- first flying while intoxicated offense (FWI 1st);
- Class A misdemeanor, punishable by 30 days to one year in county jail:
- a subsequent flying while intoxicated arrest with one prior intoxication-related conviction or deferred adjudication (FWI 2nd);
- Third degree felony, punishable by two to ten years in prison:
- flying while intoxicated with at least two prior intoxication-related convictions or deferred adjudication (FWI 3rd or more); or
- flying while intoxicated with a prior conviction for intoxication manslaughter.
WHAT IS THE PUNISHMENT RANGE FOR FLYING WHILE INTOXICATED IN TEXAS?
The punishment range for flying while intoxicated corresponds to the penalty classification, and a person’s prior convictions, if any.
- Class B misdemeanor flying while intoxicated, first offense:
- three days to 180 days in jail, maximum $2,000 fine;
- Class A misdemeanor flying while intoxicated, second offense:
- 30 days to one year in jail, maximum $4,000 fine;
- Third degree felony flying while intoxicated third or more, or FWI with a prior intoxication manslaughter conviction:
- two to ten years in prison, maximum $10,000 fine.
WHAT ARE THE PENALTIES FOR FLYING WHILE INTOXICATED IN TEXAS?
A person charged with flying while intoxicated is eligible for probation, but not deferred adjudication. The probation period for flying while intoxicated charged as a Class A or Class B misdemeanor may not exceed two years. A person may be placed on probation for a third degree felony flying while intoxicated for up to ten years.
WHAT ARE THE DEFENSES TO FLYING WHILE INTOXICATED IN TEXAS?
The statute does not authorize specific defenses to flying while intoxicated. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.
WHAT IS THE STATUTE OF LIMITATIONS FOR FLYING WHILE INTOXICATED IN TEXAS?
The limitation period for flying while intoxicated categorized as a misdemeanor is two years. If classified as a felony, the limitation period is three years.
FLYING WHILE INTOXICATED IN TEXAS
Texas law punishes operating an aircraft while intoxicated or under the influence of drugs to ensure the safety of passengers, and others who may be affected by a plane crash caused by the pilot’s intoxication.
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DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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