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Intoxication Crimes

Intoxication and Alcohol Offenses include the “drunk driving” offense of DWI and other offenses related to operating dangerous machinery while intoxicated. Under Texas law, “intoxicated” includes the effect of alcohol, drugs or a combination of both, whether or not these are prescribed to you.

Intoxication crimes are found primarily in Title 10 of the Texas Penal Code (abbreviated “PC” below). However, underage (under 21) alcohol-related crimes are found in the Texas Alcoholic Beverage Code (abbreviated “ABC” below). Driving Under the Influence (“DUI”) in Texas, is one such offense.

The list of Intoxication & Alcohol Offenses is below:

Obstructing a Highway or Other Passageway is not technically an intoxication offense, but sometimes DWI offenses are reduced to Obstruction charges as part of a plea deal, so it is relevant for consideration.

Not listed above is Possession of Alcoholic Beverage in Motor Vehicle because it does not require intoxication as an element.

What is the definition of “intoxicated”in Texas law?

The definition of “Intoxication” under Texas law is critically important in the field of DWI Defense. Many DWI defense strategies hinge on whether a defendant was “intoxicated” under the law. While the language used in the definition is simple, the meaning of the definition is, unfortunately, very complicated. The law provides for three different ways for a person to be considered intoxicated:

  • not having the normal use of mental 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;
  • not having the normal use of 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;
  • having an alcohol concentration of 0.08 or more

While the third prong (having an alcohol concentration of 0.08 or more) is a clear line, the other two prongs are less clear. What “normal use of mental or physical faculties” means is a matter of interpretation and would vary from person to person.

What is The Law on the Definition of Intoxication?

Section 49.01 of Title 10, Chapter 49 of the Texas Penal Code defines “intoxication” for the purposes of Texas DWI charges:

(2) “Intoxicated” means:

(A) 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; or

(B) having an alcohol concentration of 0.08 or more.

What complicates the definition of intoxication in Texas is that alcohol consumption is not necessary to be considered intoxicated. This results in the problem that drivers who have a blood alcohol concentration under 0.08 might still be considered intoxicated.

What is the Law on “Alcohol Concentration”?

Chapter 49 of Title 10 of the Texas Penal Code defines alcohol concentration in relation to breath, blood or urine:

(A) 210 liters of breath;

(B) 100 milliliters of blood; or

(C) 67 milliliters of urine.

How Many Drinks Does it Take To Be Intoxicated?

The number of drinks it takes for you to be intoxicated depends on several different physiological factors that are unique to your body. It also depends on the type of alcohol and the manner in which you drink it. For instance, you might be able to have five drinks over five hours and not be intoxicated, whereas if you have five drinks in five minutes, you will likely be quickly intoxicated.

Here are some guidelines: if you are a woman and under 100 pounds, you very well might be intoxicated after one drink, and you might be intoxicated for up to an hour. An average man will likely be intoxicated after having three standard in an hour. These are very generalized conclusions, however, and how many drinks it will take for you to be intoxicated will depend on additional factors like whether you had any food in your stomach, how much water you had been drinking, how much sleep you have had recently, the type of alcohol you were drinking, abnormalities in your body and many other factors.

How Can I Be Intoxicated If I Blew Under a 0.08? What If I Did Not Blow Or Give Blood?

The state does not have to show that your blood alcohol concentration was above a 0.08 BAC if they can prove that you did not have “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.”

What this means is that if you did not provide the police with any physical evidence like a blood or breath sample, you can still be “intoxicated” and thus convicted of a DWI if the state can prove that you were not acting “normal” because you had been drinking. Even if you gave a blood or breath sample and the sample produced results under a 0.08 BAC, then you can be convicted under the same theory.

What intoxication offenses do not require the operation of a “motor vehicle”?

Some “drunk driving” offenses do not require the operation of motor vehicles, and some do not even involve ‘driving.” These include Boating While Intoxicated, Flying While Intoxicated and Assembling or Operating an Amusement Ride While Intoxicated.

Section 49.06 of the Texas Penal Code describes Boating while Intoxicated. Boating While Intoxicated is defined as follows: “A person commits an offense if the person is intoxicated while operating a watercraft.” Obviously, this is very similar to a DWI offense, but it is technically a separate statutory offense, an it does not require a “motor vehicle.”

You can also be charged with Flying While Intoxicated under the offense described in Section 49.05 of the Texas Penal Code. Flying While Intoxicated is defined as follows: “A person commits an offense if the person is intoxicated while operating an aircraft.”

Assembling or Operating an Amusement Ride While Intoxicated is an offense described in Section 49.065 of the Texas Penal Code as an offense where “a person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.” Intoxication Assault and Intoxication Manslaughter do not require the operation of a motor vehicle if the person is charged with operating an aircraft, watercraft, or amusement ride while intoxicated.”

Published by Criminal Defense Attorney on and last modified