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Definition of Intoxication

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 unfortunately complicated. Essentially, 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.

Scroll down or click on a question below to learn more about issues related to the definition of intoxication and questions frequently asked of our DWI Defense Lawyer:

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.