The Five Elements of Intoxication Assault

In plain terms, intoxication assault, or DWI with serious bodily injury, is what Texas calls the DWI crime when the defendant's intoxication causes "serious bodily injury" to another. If you hurt someone in a DWI motor vehicle accident, whether a passenger in your vehicle, the occupant of another vehicle, or a pedestrian, bicyclist, or another person along the roadway, then you may face an intoxication assault charge. As you should guess, intoxication assault is a much more serious crime than Texas's basic first-offense DWI charge, where no one suffers an injury. Texas Penal Code Section 49.04 defines the basic DWI crime, without injury. But other Texas penal code sections raise the offense level and penalties of the basic DWI crime. Second, third, or fourth offense DWIs, intoxicated driving with a child passenger, and intoxicated driving causing death are examples of elevated Texas DWI crimes. Intoxication assault is another one of those elevated DWI crimes. Get a clear understanding of intoxication assault's five elements if you are to most effectively assist your retained DWI defense attorney in defending your intoxication assault charge.

Evaluation Requires Understanding the Elements

Clear definition of each element of intoxication assault is important to the outcome of your charges. Retaining a DWI attorney's good understanding of those definitions and strong ability to communicate those definitions is also important. Definitions and their understanding help judges, juries, prosecutors, and defendants evaluate, negotiate, deliberate, and decide intoxication assault charges. If you don't know the elements, then you don't know the charge. And if you don't know the charge, you have no basis for evaluating and resolving it. How should you plead? To what charge should you plead? What plea bargain can and should you negotiate? Is pretrial diversion a better bargain? What are the prospects for an acquittal at trial? What are the prospects for an appeal of a conviction? Your understanding of the elements of intoxication assault, with a Board Certified DWI defense attorney's experienced advice, helps you answer these critical questions.

Your Outcome Requires Understanding the Elements

Another reason why your understanding of intoxication assault's elements, and your DWI attorney's ability to help you and others evaluate the evidence against those elements, are important is that the outcome of your case depends on it. Judges instruct juries on intoxication assault's elements under Texas Criminal Pattern Jury Charge 40.20. In closing arguments, your DWI defense attorney will help the jury apply those instructions to the evidence. And you may face acquittal or conviction based on that application of facts to elements. That outcome is hugely important to you, because intoxication assault carries much stiffer penalties. Texas Penal Code Section 49.07(c) elevates the offense level from an ordinary DWI's Class B misdemeanor to intoxication assault's third-degree felony. Texas Class B misdemeanors carry a penalty of from a minimum of 72 hours to a maximum of 180 days in jail, while under Texas Penal Code Section 12.34, a third-degree felony carries jail time of from two to ten years. Your stakes when facing an intoxication assault charge are just much higher. That's another reason your retained DWI defense lawyer must have the skill and experience to analyze and vigorously advocate each charge element.

The Five Elements of Intoxication Assault

Under Texas Penal Code Section 49.07, the prosecution must prove five elements, each beyond a reasonable doubt, to obtain a conviction on an intoxication assault charge. Those five elements are (1) causing, (2) by reason of intoxication, (3) the serious bodily injury of another, (4) while operating a motor vehicle (5) in a public place. These elements create substantial opportunities for skilled defense representation to improve the outcome of your intoxication assault charge.

The Causation Element of Intoxication Assault

The first element of intoxication assault under Texas Penal Code Section 49.07 is that the defendant must have caused the injury by reason of intoxication. This causation element requires that the prosecution connect the defendant's intoxication with the injury. If, without intoxication, the injury would have resulted nonetheless, then the prosecution has not met the causation element. Lawyers and judges sometimes call this form of causation "but-for" causation, as in but for the defendant's intoxication, the person would not have suffered an injury. Texas Criminal Pattern Jury Charge 40.20 on causation in intoxication assault uses the "but-for" formulation as follows: "Intoxication causes the serious bodily injury of another if that serious bodily injury would not have occurred but for the person's intoxication." Causation is a winning defense in cases leaving a reasonable doubt that a sober driver with normal mental and physical faculties would have caused the same accident as the intoxicated driver under the same circumstances. That defense, though, generally requires representation from a skilled and experienced DWI attorney.

Causation and Fault

Importantly, the defendant need not necessarily have been at fault for the accident that caused serious bodily injury. Texas Penal Code Section 49.07(a) provides that the defendant commits intoxication assault whether the intoxication causes serious bodily injury to another "by accident or mistake." The prosecution need not prove that the defendant drove negligently or recklessly. The prosecution need only prove that intoxication caused serious bodily injury. Texas Criminal Pattern Jury Charge 40.20 states, "The requirement that the person have caused serious bodily injury to another 'by accident or mistake' means that the person need not have had criminal intent or any culpable mental state." On the other hand, where the intoxicated driver was not at fault, juries may be less likely to convict, even if the prosecutor has some evidence that intoxication contributed in some way to the accident. That evidence would more likely leave reasonable doubt, requiring an acquittal.

The Intoxication Element of Intoxication Assault

The second element of intoxication assault under Texas Penal Code Section 49.07 is that the defendant must have been unlawfully intoxicated. The defendant's intoxication may involve alcohol, drugs, or a combination of the two. The prosecutor's proof burden under the statute is to prove either an alcohol concentration of at least .08 or that the defendant did not have normal mental or physical faculties because of intoxication. Texas Criminal Pattern Jury Charge 40.20 states the alternatives most succinctly and reliably when it provides that intoxicated means either "(1) 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 (2) having an alcohol concentration of 0.08 or more."

The Serious Bodily Injury Element of Intoxication Assault

The third element of intoxication assault under Texas Penal Code Section 49.07 is that the other person must have suffered serious bodily injury. Serious injury to anyone other than the intoxicated motor vehicle driver may do. If, on the other hand, only the intoxicated driver suffered a serious injury, then the driver has not committed intoxication assault. Texas Penal Code Section 49.07 provides that the injury must be "to another," which could mean injury to a passenger in the driver's own vehicle, an occupant of another vehicle, or someone like a pedestrian or bicyclist along the highway.

How Serious the Injury Must Be

The big question many intoxication assault cases present, on which your potential conviction could well turn, is how serious the other person's injury must be to meet the statutory element. Texas Penal Code Section 49.07(b) defines serious bodily injury as "injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." According to Texas Criminal Pattern Jury Charge 40.20 on intoxication assault, the intoxication assault statute draws that definition from Texas Penal Code 1.07(a)(46). Thus, either (1) substantial risk of death, or (2) serious permanent disfigurement, or (3) protracted loss of the function of any bodily member or organ, or (4) protracted impairment of the function of any bodily member or organ may satisfy the element. Disfigurement and protracted loss or impairment of function are objective standards, generally more readily seen and determined. But the "substantial risk of death" alternative is not so clearly seen and objectively determined, because it involves risk instead of what actually happened to the other person. Effective advocacy around this issue requires skilled and experienced DWI attorney representation.

Injuries to Special Personnel

Although serious injury to anyone other than the defendant can satisfy the serious injury element, serious injury to special personnel can enhance the offense level. Texas Penal Code Section 49.09(b-1) elevates intoxication assault from a third-degree felony to a second-degree felony for firefighters or emergency medical personnel seriously injured while discharging their official duties. Texas Penal Code Section 49.09(b-1) elevates the charge from a third-degree felony to a first-degree felony for peace officers or judges seriously injured discharging their official duties. The law's clear purpose, except perhaps in the case of judges, is to protect first responders who face special risks attending to persons whom motor vehicle accidents injure. Beware of the added penalties for seriously injuring first responders.

Case Law on Serious Bodily Injury

Case law helps to define what constitutes a severe enough bodily injury for a reasonable juror to conclude that the injury was a serious bodily injury. Human anatomy is so complicated, and its injury so various, that no single definition for serious bodily injury could adequately communicate what is or is not serious enough. Cases holding one way or the other, where each case involved a different kind of injury, help give prosecutors, defense attorneys, and judges guidance. Here are a few examples illustrating the line between an injury serious enough or not serious enough to qualify as serious bodily injury, for your retained DWI Specialist to interpret:

• In Fleming v. State, 21 S.W.3d 275 (Tex. Crim. App. 2000),the Texas Court of Appeals held that torn cartilage, a severely jammed hand, arthroscopic surgery on the knee to remove torn cartilage, and persisting problems with the knee and hand with six weeks of missed work were not a serious bodily injury sufficient to support intoxication assault;
• InMoore v. State, 739 S.W.2d 347, 352 (Tex. Crim. App. 1987),the Texas Court of Appeals held that left leg numbness, severe headache, breathing difficulty, bruised chest, cracked pelvic bone, emergency room visit, nine months of physical therapy, and persistent pain and discomfort with a potential for surgery does not constitute a substantial risk of death or serious permanent disfigurement but could constitute protracted impairment. The Court of Appeals held that "protracted" means "continuing, dragged out, drawn out, elongated, extended, lengthened, lengthy, lingering, long, long-continued, long-drawn, never-ending, ongoing, prolix, prolonged, or unending";
• In Grissom v. State, No. 07-15-00333-CR (Tex. App. May 15, 2017),the Texas Court of Appeals held that two and a half years of arthritis with hip impairment could constitute protracted loss or impairment, although a head wound that fully healed, leaving a scar not visible when combed hair covered the scar, was not a qualifying serious permanent disfigurement;
• In Soulas v. State, No. 13-99-002-CR (TX 6/16/2005) (Tex., 2005), the Texas Court of Appeals held that facial deformity from an orbital blowout that required surgery and insertion of a metal plate in the eye socket, hip permanently indented, two cracked front teeth with extensive dental work to replace the teeth, sharp pains to the left side of the head, extreme dizziness, spontaneous twitching of an eyelid, surgical scars, and permanent indentation in the side of the head could constitute serious permanent disfigurement.

The Vehicle Operation Element of Intoxication Assault

The fourth element of intoxication assault is the vehicle operation element. Slugging or shooting another while intoxicated is not intoxication assault, although it could be assault or another Texas crime. The vehicle operation element distinguishes other intoxication crimes from DWI crimes. Texas Penal Code Section 49.07 on intoxication assault does not define "operating a motor vehicle." Texas appellate court cases have stepped in to define operating a motor vehicle as "to affect the functioning of [the] vehicle in a manner that would enable the vehicle's use." Thus, sleeping in the vehicle while sitting in the driver's seat with the vehicle parked but running could potentially be evidence of vehicle operation, but is not always conclusive of operating. It is handled on a case by case basis. While ordinary DWI charges without injury often implicate these kinds of issues, the injury element of intoxication assault, typically requiring a moving vehicle, makes other issues more important in those cases.

Definition of a Motor Vehicle

Motor vehicle operation requires defining not just operation but also motor vehicle. For purposes of intoxication assault, and other DWI crimes, Texas Penal Code Section 49.01(3) defines a motor vehicle with "the meaning assigned by Section 32.34(a)." Texas Penal Code Section 32.34(a) then defines a motor vehicle as "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." Notice that the definition says nothing about the vehicle having to be street-legal. Prosecutors charge DWI crimes involving any motorized vehicle capable of transporting or pulling a person or property on a highway. That includes off-road vehicles, golf carts, and go-karts. Texas Penal Code Sections 49.01(3) and 34.32(a) also encompass motorcycle DWI, which prosecutors routinely charge. In short, intoxication assault could be the charge, whether the defendant operates a car, truck, motorcycle, off-road vehicle, golf cart, or go-kart, as long as the operation is in a public place.

Operating Other Equipment

Certain other pieces of equipment will also do, beyond an ordinary motor vehicle. Texas Penal Code Section 49.07 provides that a defendant can commit intoxication assault "while operating an aircraft, watercraft, or amusement ride while intoxicated." Of course, the crime usually involves a conventional motor vehicle, but an aircraft, watercraft, or amusement ride will also do. Boating while intoxicated and operating an aircraft while intoxicated are other Texas DWI crimes, even without injury. Prosecutors have charged bicyclists with DWI crimes, but the statute's "motor vehicle" language clearly indicates otherwise.

The Public Place Element of Intoxication Assault

The fifth and final element of intoxication assault is the public place element. To prove an intoxication assault charge under Texas Penal Code Section 49.07, the defendant's operation of the motor vehicle must have been "in a public place." Public place, though, no longer means the vehicle's operation must be on a public highway, as the statute's plain language may suggest. Public highways qualify as public places, certainly. But since the statute's adoption, Texas's appellate courts have defined or redefined "public place" to also include where the public "has access." The public, as in the government, need not own, control, or maintain the place. The 2009 Texas Court of Appeals opinion Campos v. State remains the guiding case summarizing this development, seeming to modify or eliminate the strict "public place" requirement. Campos v. State even goes so far as to confirm that "the relevant inquiry is whether the public or a substantial group of the public has access to the place in question. ... The level of access does not need to be complete or entirely unrestricted, provided members of the public could gain access under the right set of circumstances." Public place remains an element but one that prosecutors have significantly greater latitude to prove, making skilled DWI defense lawyer representation all the more important. Consider these illustrating examples:

• Operating a golf cart on a golf course to which the public has access can be operating in a public place, but operating the golf cart on land from which the owner excludes all members of the public would likely not be;
• Operating a motor vehicle in the parking lots and drives of a privately owned mall or shopping area to which the public has access can be operating in a public place, but operating a motor vehicle on a closed-off lot of abandoned buildings from which the owner excludes all of the public would likely not be;
• Operating a motor vehicle on a private road to which the public has access would be operating in a public place, but operating on a private road from which the owner bars all of the public as trespassers would likely not be;
• Operating an off-road motor vehicle or motorcycle on privately owned lands open to the public for off-roading would likely be operating in a public place, but doing the same on private lands barred to all of the public would likely not be.

Intoxication Assault Offense Levels and Penalties

Intoxication assault is a serious Texas crime, not just an ordinary DWI misdemeanor but instead a felony. On the other hand, intoxication assault in the ordinary case is just a third-degree felony, not the higher first or second-degree felony Texas also recognizes. But while Texas Penal Code Section 49.07(c) defines intoxication assault as a third-degree felony, an enhancement statute Section 49.09(b-1) elevates the ordinary third-degree charge to the second degree in certain cases. Those cases include when the defendant has injured firefighters or emergency medical personnel who were discharging their duties. The same statute elevates intoxication assault to a first degree for injuring peace officers or judges discharging their duties. The sentence for each felony level increases accordingly. A Texas third-degree felony carries a sentence of up to ten years, while a second-degree felony elevates the maximum to twenty years, and a first-degree felony elevates the maximum to life. Other potential penalties include fines of up to $10,000 or more, driver's license suspension, community service, installation of an interlock device, participation in drug or alcohol programs, and court costs and program fees. The type of injury the victim suffers can also affect the charge. Texas Penal Code Section 49.09(b-4) elevates intoxication assault from a third-degree felony to a second-degree felony when the victim suffers a traumatic brain injury and persistent vegetative state.

Contact Our Houston Intoxication Assault Defense Attorney

Definitions of the intoxication assault elements create defense opportunities for skilled and experienced DWI lawyers. Retain premier Texas DWI defense attorney Doug Murphy for your best possible outcome to an intoxication assault charge. Attorney Murphy is one of only two Texas lawyers who are Board Certified in both DWI defense and criminal law. Best Lawyers in America has named attorney Murphy Lawyer of the Year for Houston DWI defense. Call 713-229-8333 or reach out online now to retain attorney Murphy. The high stakes of an intoxication assault charge warrant the best available defense.