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.

Update: Effective as of September 1, 2019, there are additional fines required to be imposed on intoxication-related offenses, including DWI. Learn more about these changes below.

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.

Other important topics related to intoxication crimes include:

• Probation in Intoxication cases
• Interlock Devices
• Occupational Driver’s Licenses
• Financial Responsibility Certificate (SR-22 “Insurance”)
• ALR Hearings & License Suspensions

What are all of the crimes related to intoxication in Texas?

The list of Intoxication & Alcohol Offenses is below:

• PC 49.02 – Public Intoxication
• PC 49.04 – Driving While Intoxicated (“DWI”)
• PC 49.045 – Driving While Intoxicated With Child Passenger
• PC 49.05 – Flying While Intoxicated
• PC 49.06 – Boating While Intoxicated
• PC 49.065 – Assembling or Operating an Amusement Park Ride While Intoxicated
• PC 49.07 – Intoxication Assault
• PC 49.08 – Intoxication Manslaughter
• ABC 106.041 – Driving or Operating Watercraft Under the Influence of Alcohol by a Minor (“DUI“)

What is the definition of intoxicated? How many drinks does it take to be intoxicated? What if I did not blow or give blood?

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 definition provided in Texas law is clear, the meaning of the definition is less straightforward. The law provides for three different ways for a person to be considered intoxicated:^[1]

• 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.

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 0.08 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.”^[2]

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 considered “intoxicated” under TExas law 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 does the law mean by blood “alcohol concentration”?

For the purposes of DWI charges, alcohol concentration is defined in Texas law as the number of grams of alcohol per:^[3]

(A) 210 liters of breath;

(B) 100 milliliters of blood; or

(C) 67 milliliters of urine.

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.”

What are the new 2019 fines for intoxicated operation of motor vehicle offenses?

The 86th Texas Legislature implemented additional fines for all offenses “relating to the operation of a motor vehicle while intoxicated” starting in 2019.^[4]These new fines range from $3,000 to $6,000, and are as follows:^[5]

• (1) $3,000 for the first conviction within a 36-month period;
• (2) $4,500 for a second or subsequent conviction within a 36-month period; and
• (3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

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Legal References:

^1. Texas Penal Code Section 49.01(2):

(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.

We added the emphasis on “or” because we wanted to point out that the definition of “intoxicated” in Texas does not necessarily require the consumption of alochol or having any concentration of alochol in your blood. This results in the problem that drivers who have a blood alcohol concentration under 0.08 might still be considered intoxicated under Texas law. Learn more about what happens when blood alochol concetration is under 0.08^2. Texas Penal Code Section 49.01(2)^3. Texas Penal Code Section 49.01(1)^4. Sec. 709.001(a), Transportation Code, as implemented by HB 2048, 86th Texas Legislature, effective September 1, 2019 –

(a) In this section, “offense relating to the operating of a motor vehicle while intoxicated” has the meaning assigned by Texas Penal Code §49.09.

Texas Penal Code Section 49.09(c) defines “offense relating to the operating of a motor vehicle while intoxicated” as:

(A) an offense under Section 49.04 (DWI) or 49.045 (DWI with Child);

(B) an offense under Section 49.07 (Intoxication Assault) or 49.08 (Intoxication Manslaughter), if the vehicle operated was a motor vehicle;(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;

(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;

(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or

(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.

^5. Sec. 709.001(a), Transportation Code, as implemented by HB 2048, 86th Texas Legislature, effective September 1, 2019 –

(b) Except as provided by Subsection (c), in addition to the fine prescribed for the specific offense, a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated shall pay a fine of:

(1) $3,000 for the first conviction within a 36-month period;

(2) $4,500 for a second or subsequent conviction within a 36-month period; and

(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.