Intoxication Assault

Board Certified Criminal Defense Specialist

Call or Email Free Consultation With Criminal Defense Expert

Intoxication Assault is a detail driven charge. Often it comes down to the Jury’s interpretation of the smallest of details to determine what crime, if any, occurred. To better understand what that looks like, the offense is broken down below:

TPC Sec. 49.07:

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

     (1) while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication, causes serious bodily injury to another.

Punishable by:

     2 – 10 years Prison and fine not to exceed $10,000

To understand this crime, first we must break down the elements:

  • A certain person
  • On or about a certain date
  • Operating
  • A motor vehicle
  • In a public place
  • While intoxicated
  • AND by reason of that intoxication cause
  • Serious Bodily Injury to Complainant
  • By accident or mistake.


Caselaw provides that this date only exists to provide the Defense with notice of the offense charged and that the Statute of Limitations has not run on the offense.


Operating has no definition under Texas law.


TPC 32.24(2): “Motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.


TPC Sec. 1.07 (40): “Public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.


TPC 49.01 (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.

(1) “Alcohol concentration” means the number of grams of alcohol per:

     (A) 210 liters of breath;

     (B) 100 milliliters of blood; or

     (C) 67 milliliters of urine.


TPC Sec. 6.04. CAUSATION: CONDUCT AND RESULTS. (a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.


TPC 107 46) “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.


‘Accident or mistake’ relates to the non-essential proving of a mental state. Eg: the offense itself expressly does not require a mental state to be proven.

In review:

The heart of your Intoxication Assault defense rests in these elements. It is the exceptionally rare case that every single element is able to be proven by the State beyond a reasonable doubt without pause or hesitation by the Jury. Typically, there are some elements that are not in our best interest to contend, first let’s get those out of the way. Those elements are:

  • “On or about a certain date”
  • “Operating”
  • “A motor vehicle”
  • “In a public place”
  • “by accident or mistake”

**NOTE: because it is unusual to be in a position to contest an Intoxication Assault case on the basis of one or more of these elements we are going to leave the issues they present out of the discussion; however, if one of these elements is able to be contested by the facts of your case, you are in a very strong position.

Most Intoxication Assault cases have one or more flaws/ weaknesses among the following elements:


The identity of the driver of the suspect vehicle must be proven to the jury in trial beyond a reasonable doubt, and the inability to prove the identity of the driver of the suspect vehicle is an absolute bar to prosecution. What that means the Prosecutor will have to prove varies greatly from case to case. Depending on the facts of your case, there may be only one person that claims they saw and can identify the driver of the suspect vehicle. Then the question becomes, did the police do everything required to ensure that a proper identification was made (ie: blind or double blind photo array recorded in a stable environment (proper) v. showing the witness the suspect’s driver’s license photo and asking “is this the guy?” (improper)). The above example is one of hundreds of possibilities that can and do arise regarding identification in these cases. To determine what problems exist with identification in your case you need the assistance of an attorney that has handled hundreds of these cases before, call Kyle Watkins now 254-444-9920.


There are many ways a Prosecutor can prove intoxication; each presents its own set of weaknesses and vulnerability to attack. Obviously, if a person is not intoxicated he or she cannot commit the offense of Intoxication Assault.

BLOOD: If blood was drawn, it was likely drawn in one of five ways:

(1) “Warrant Draw”, means that the police obtained a warrant and then drew a suspect driver’s blood pursuant to that warrant. A warrant draw requires that a search warrant must have been properly drafted, presented, signed by a neutral Judge, executed, filed, and a return filed. These steps must be strictly adhered to, and bring with them many places for Officers to get confused and make a mistake. Mistakes here can be inconsequential and they may be fatal to the admissibility of the blood evidence.

(2) “Residual Blood”, means that when the suspect driver was taken to the hospital for medical evaluation and treatment the hospital staff drew multiple vials of blood and did not use them all in the evaluation and treatment of the patient. Those vials are then turned over to law enforcement (with a proper and timely request). More often than not, the vials that the police tag into evidence are the incorrect vials (zebra tops, green tops, etc.) and the subsequent blood results from those vials will be inadmissible.

(3) “Hospital Draw”, means the hospital itself drew and tested the suspect driver’s blood. Further, it may mean that the Prosecutor intends to offer the hospital blood test result in trial. Woe to the Prosecutor that attempts to admit these results, based on a hospital test. There exists a litany of reasons and a mountain of case law that expressly prohibits this misleading and highly prejudicial test result from coming before the jury. Admission of a hospital draw can be good for a Citizen accused, in that you will have an excellent grounds for appeal (provided your lawyer understood the evidence and the law well enough to develop the record); but rather than have an excellent grounds for appeal we would rather just do all possible to ensure the jury never hears that number in the first place.

(4) “Exigent Circumstance Draw”, means that the police and prosecutors believed they would be unable to get a warrant in time to preserve the blood evidence and so they decided to draw the blood without a warrant. The Texas Court of Criminal Appeals (the highest Court in Texas for criminal cases) and the United States has recently weighed in on this issue and ultimately does allow this type of behavior, but only in very limited circumstances – the inquiry is too fact specific to list here, but an attorney with sufficient training and experience will be able to advise you if this applies to your case.

(5) “Consent Draw”, means the police requested that the suspect driver provide a sample and the suspect driver consented. Here, the consent must be voluntary and not coerced. The reading of the DIC-24 is not, alone considered to be coercive; however, it can and does happen that there are additional facts that demonstrate/ prove that the consent was not voluntary, and was in-fact coerced. Once the blood has been obtained by the police, it must be properly handled and then delivered to the crime lab. Frequently blood is mishandled by the police between the time of the draw and the delivery to the lab. If the handling of the blood was proper up until the time it was delivered to the lab, we now get into an area of the law that is new and constantly changing: crime lab blood tests and admissibility. The crime lab must meet not only the legislative requirements, but also the case law requirement as it pertains to scientific testing, chain of custody and expert testimony. This is the part where many intoxication cases develop problems. To create an exhaustive list of the legal requirements for the admission of the blood test results would be too voluminous, as there are too many possible problems compounded by all of the actual problems that have already arisen in Texas Courts. To put it plainly, the question is not “is there a problem with the testing that was done in my case?”, the question is “what problems exist, and are they enough to keep the blood out of evidence?”. The cases with “no issue” in the testing phase are much more the exception than the rule. Hiring an attorney with training and experience in this area of the law will ensure that the problems that the lab encountered in the testing of the blood in your case are discovered and used to your full advantage.

BREATH: If a breath test was done, we already know several things (1) the DIC-24 should have been read aloud to the suspect driver and a copy presented to him/ her, (2) the suspect driver was uninjured in the crash, (3) the suspect driver ‘consented’ to the breath test (4) a station interview was conducted post custody (5) a video was made (6) an ‘Intoxilizer 5000’ (or newer) was used.

Breath tests in Texas have been the subject of much controversy and debate. Primarily because there is a public interest in not convicting innocent people that has to be balanced against the public interest in traffic safety. It is the inherent lack of reliability in breath tests that have been the root cause of the controversy. The machines and the results themselves are based on weak science at best and consistently are subject to mechanical problems. While a juror may rely on this type of evidence, an adequately educated jury is likely to find that the machine can not be relied on for purposes of proof beyond a reasonable doubt.

NORMAL USE STANDARD: This law applies to the portion found in part A of the definition of intoxication. Namely: “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.“ This is further broken down as such:

(1) Mental

     (a) Not having

     (b) Normal use

     (c) Mental faculties


(2) Physical

     (a) Not having

     (b) Normal use

     (c) Physical faculties

The Definition benefits the Prosecutor in one major way: “or”. Because it is an “or” law, the jury is free to disagree about whether a Citizen accused did not have the normal use of his mental faculties or his physical faculties. It could be 6 and 6 divided; but, so long as they all agree one or the other was lost at the time of the crash, the jury must find that the element of intoxication has been proven. Further, all of this can be proven through all the facts and circumstances that are available and admissible (eg: admissions of drinking, slurred speech, smell of alcohol, open containers, driving facts, red-bloodshot eyes, bar receipts, surveillance video, dash-cam video, body-cam video, Standardized Field Sobriety Tests, etc.). The battle ground here is admissibility (eg: what information should the jury hear and what should they not hear). Here, we have a suspect driver that was just in a major crash, has likely suffered some, if not major, injury and brain trauma. Many of the facts that Prosecutor believes shows intoxication are more likely caused by the impact of the crash. Further, because intoxication is at issue, it is extremely prejudicial to a Defendant to put many of those facts before the jury and all must be carefully evaluated by the Judge, in light of what the State can PROVE was not caused by the crash. Suppression of evidence/ admissibility is the first step in fighting a case based on the normal use standard. Further, the standard is most vulnerable to attack on the basis of what is ‘normal’, and whose normal are we comparing to? Depending on the facts and circumstances of your case, it is entirely possible that at least some of the evidence gathered by the police should not be admitted into evidence, and then the question becomes, “will there be enough left for the jury to believe intoxication was proven beyond a reasonable doubt?”.

To learn more about intoxication click here.


Causation is likely where we make our stand. The law here is clear and confusing all at once. Most Prosecutors do not understand Causation, and frequently it is not until a lawyer has been immersed in the cases, the law that applies, and has tried several of these cases that she or he can fully understand it. This lack of understanding often leads to improper arguments, misstatements of the law, improper voir dire, and flawed jury charges, which in turn lead to intoxication manslaughter cases overturned on appeal (where the Defendant’s attorney knew when and how to object and develop the record). It is in this area that a well-versed, experienced and knowledgeable attorney adds the most value to the defense of a Citizen accused. Eloquent jury argument and persuasive voir dire by the attorney for the Citizen accused can carry the day and result in a not guilty verdict; but, if the case can be disposed of in the law (before, and as opposed to in, the jury verdict) we want that 7 out of 7 days a week. So, again, let us look at the law:

TPC Sec. 6.04. CAUSATION: CONDUCT AND RESULTS. (a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. This will be broken down at trial as follows:

(1) A person is criminally responsible if the result would not have occurred but for his conduct,

     (a) operating either alone or concurrently with another cause,

          (i) unless the concurrent cause was clearly sufficient to produce the result and

          (ii) the conduct of the actor was clearly insufficient.

These elements above provide the framework from which we analyze everything that happened in the crash AND everything the police did (or did not do) in reconstruction of the crash. For a specific, but not exhaustive list, of the items that must be verified and tested for police reconstruction error:

  • Airbag Control Module
  • Steering Input/ Effects
  • Perception Reaction Time(s)
  • Glare
  • Vision – actual and field
  • Complainant Impairment
  • C measurements
  • Yaw, Roll, Velocity, Pitch, Kinetic Energy, Damage Impressions, Momentum Analysis, Point of Rest
  • Initial Engagement
  • Velocity
  • Total Station execution and analysis
  • Coefficient of Friction
  • Critical Curve Speed
  • Drag Sled measurements, Drag Factor
  • Tread Marks, Slippage, Lock-out(s)
  • C.R.U.S.H. profiles/ analysis

What does all this information tell us? In essence, it will be the basis for whether to not the Prosecutor can claim, much less prove, that the death was caused by the reason of the suspect driver’s intoxication. To further break down the elements in issue in the investigation and Defense of an Intoxication Assault case would be too voluminous to list. Hiring an attorney with ample training and experience in this area of the law will give the insight you need to adequately assess and evaluate the strengths, weakness and vulnerabilities in the Prosecutor’s case.

The owner of this website has made a commitment to accessibility and inclusion, please report any problems that you encounter using the contact form on this website. This site uses the WP ADA Compliance Check plugin to enhance accessibility.