Texas Penal Code 49.07 – Intoxication Assault

WHAT IS INTOXICATION ASSAULT IN TEXAS?

The Texas law against intoxication assault prohibits operating a motor vehicle, aircraft, watercraft, or amusement ride while intoxicated, and causing serious bodily injury to another as a result.

• 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 INTOXICATION ASSAULT LAW IN TEXAS?

Tex. Penal Code § 49.07. INTOXICATION ASSAULT

(a) A person commits an offense if the person, by accident or mistake:

(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or

(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.

Tex. Penal Code § 49.09. ENHANCED OFFENSES AND PENALTIES.

(b-1) An offense under Section 49.07 is:

(1) a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a firefighter or emergency medical services personnel while in the actual discharge of an official duty; or

(2) a felony of the first degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer or judge while the officer or judge was in the actual discharge of an official duty.

(b-2) An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).

(b-4) An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state.

WHAT IS THE PENALTY CLASS FOR INTOXICATION ASSAULT IN TEXAS?

The penalty classification for intoxication assault depends on the injury caused, and the victim’s status at the time of the offense.

• Third degree felony, punishable by two to ten years in prison;
  • by default, without other aggravating factors;
• Second degree felony, punishable by two to 20 years in prison, if:
  • the serious bodily injury caused to the victim was a traumatic brain injury resulting in a persistent vegetative state; or
  • the victim was a firefighter or emergency medical services personnel in the actual discharge of official duties;
• First degree felony, punishable by five to 99 years in prison, if:
  • the victim was a peace officer or judge in the actual discharge of official duties.

WHAT IS THE PUNISHMENT RANGE FOR INTOXICATION ASSAULT IN TEXAS?

The punishment range for intoxication assault corresponds to the penalty classification, which is based on the victim’s statute, and type of injury caused.

• First degree felony, when the victim is a peace officer or judge on duty:
  • five to 99 years in prison, maximum $10,000 fine;
• Second degree felony, when the victim is a firefighter or EMS personnel, or the victim suffered a traumatic brain injury:
  • two to 20 years in prison, maximum $10,000 fine;
• Third degree felony:
  • two to ten years in prison, maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR INTOXICATION ASSAULT IN TEXAS?

A person charged with intoxication assault is eligible for probation after a conviction for a period not to exceed ten years. Deferred adjudication is not an option for an intoxication assault charge.

• Will ignition interlock or other alcohol monitoring device be required after an intoxication assault arrest? Texas Code of Criminal Procedure article 17.441 requires a person arrested for intoxication assault to install ignition interlock on any vehicle a person owns or regularly drives within 30 days of release on bond. The accused will be required to pay all accompanying fees to the company contracting with the county that installs the device.

• Does insurance go up after an intoxication assault conviction in Texas? Yes. Texas Insurance Code Section 1953.052 permits a premium surcharge for a person convicted of driving while intoxicated, intoxication assault, and intoxication manslaughter for a minimum of three years following the conviction. Learn more.

WHAT ARE THE DEFENSES TO INTOXICATION ASSAULT IN TEXAS?

The statute does not authorize specific defenses to intoxication assault. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.

• Does intoxication include prescribed medication in Texas? Yes. Texas Penal Code Section 49.10 provides it is not a defense to intoxication offenses if the person was “entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance.” This means that even if a person was driving under the influence of legally prescribed medication, the person may still be charged with an intoxication offense if the State proves loss of normal use of mental or physical faculties.For example, in Noska v. State, the defendant crashed into another vehicle around 9:00 a.m. on the way to her daughter’s school. She killed the driver, and the passenger suffered broken ribs, pulmonary contusions, a spinal ligament injury, and a fractured clavicle. The defendant was under the influence of Xanax, Carisoprodol (“Soma”), Vicodin, and a small amount of opiates and cannabinoids. She was legally prescribed the medication, but her doctor warned her about driving after taking them. She was convicted of intoxication manslaughter and intoxication assault, and the appellate court affirmed.

• Can a person refuse a blood test for intoxication assault in Texas? A person may refuse a blood or breath test after an arrest for intoxication assault. But pursuant to Texas Transportation Code Section 724.012, police may obtain a warrant based on probable cause to extract a specimen of an arrestee’s blood. The Transportation Code also requires a person’s license to be suspended for 180 days if the person refuses to consent to the taking of a blood or breath specimen. Learn more.In Mitchell v. Wisconsin, the U.S. Supreme Court held that unconscious drivers suspected of drunk driving are subject to warrantless blood draws due to exigent circumstances, and a compelling need of the State to promote the paramount interest of highway safety.

WHAT IS THE STATUTE OF LIMITATIONS FOR INTOXICATION ASSAULT IN TEXAS?

The limitation period for intoxication assault is three years.

INTOXICATION ASSAULT IN TEXAS

Texas law punishes causing serious bodily injury to another by reason of operating a motor vehicle, watercraft, airplane, or amusement ride while intoxicated. There is no required culpable mental state, other than the person’s voluntary act of consuming intoxicants before driving.

TEXAS INTOXICATION ASSAULT COURT CASES

The case law regarding intoxication assault in Texas further illustrates the causation required for this offense.

• In Olalde v. State, a woman crashed into another car, killing the driver and injuring the four passengers. She had a 0.18 BAC, and was charged with intoxication manslaughter, and intoxication assault. She argued at trial, and on appeal after conviction, that the deceased driver of the other car was at fault. The appellate court affirmed her convictions, explaining that even if the victim-driver contributed to the crash, the defendant’s intoxication, by itself or combined with the other driver’s actions, caused the victims’ death and injuries.