You've been out. You had a few drinks. You drove. You got into an accident. And someone got hurt. Because you allegedly drove while intoxicated, you may risk a Driving While Intoxicated (DWI) charge, but because someone was injured in the accident, it is more likely you will be charged with an offense accompanied by more severe consequences: Intoxication Assault.
If you are reading this for a friend or family member who was just arrested for intoxication assault, you need to know the government is already working on building their case against your friend or family member. It may be necessary given the facts to get an accident reconstruction team immediately to the scene to preserve favorable evidence. Favorable evidence that could defeat this charge can be destroyed with time. It is imperative that you immediately retain an experienced and skilled lawyer who has a proven track record of defeating the government's evidence in an intoxication assault case.
Texas takes prosecuting drinking and driving offenses seriously, and so should you, especially if (1) you were not legally intoxicated; (2) there were issues with the traffic stop and subsequent police investigation, including field sobriety tests or breath and blood tests; and (3) you did not cause the accident. It is important to contact a reputable DWI lawyer who will identify mitigating factors and/or defenses to your particular situation, build a strategic defense, and tirelessly advocate on your behalf with either the prosecution or before a judge and jury.
DWI v. Intoxication Assault
A DWI and Intoxication Assault are two separate charges that carry with them separate punishment if convicted. DWI and Intoxication Assault share 4 elements that must be proved for a conviction: (1) operating (2) a motor vehicle (3) while intoxicated (4) in a public place. For a conviction of Intoxication Assault, one more element must be present: (5) by accident or mistake, the person caused serious bodily injury to another person.
Intoxication Assault, like a DWI, can be associated with a single car, or single car accident so long as a passenger in the car was injured.
Like a DWI, you must still submit to a breath or blood test. Your failure or refusal to do so will affect your driving privileges. You have only 15 days to request an administrative hearing or else risk automatic loss of driving privileges.
A person can also be charged with Intoxication Assault concurrently if charged with boating while intoxicated, flying while intoxicated, operating an amusement ride while intoxicated, or assembling a mobile amusement ride while intoxicated, if -- in any of these circumstances -- the impaired person also (1) caused an accident; and (2) another person(s) was injured.
Intoxication Assault: The Offense
Texas Penal Code § 49.07 defines the offense of Intoxication Assault. An individual operates a motor vehicle on a public road and by reason of his or her impairment, causes an accident that results in serious bodily injury to another person. It does not matter if the injuries were caused by accident, by mistake, or by intent. Serious bodily injury, according to Texas Penal Code 49.07(1)(b) is defined as an 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.”
Intoxication Assault is a Third Degree Felony. However, this charge can be enhanced, dependent on the nature of the injury and who was injured.
- The offense becomes a Second Degree Felony if the injury results in a vegetative state.
- The offense becomes a Second Degree Felony when the injury happens to a peace officer, firefighter, or emergency medical personnel in the line of duty.
Intoxication Assault: The Defense
There are a number of defenses that can be used in Intoxication Assault cases. Your defense strategy will be based primarily on the facts, the evidence, and the interpretation of the law. To prove intoxication assault, the burden is solely on the Prosecution. It is the defense's responsibility to instill enough doubt that a jury will not find you guilty beyond a reasonable doubt. Generally speaking, the Prosecution must prove causation, which means they must prove you were both intoxicated and the cause of the accident. An experienced lawyer knows how to attack the State's evidence and arguments. A good defense is a multi-faceted defense that can include any of the following strategies.
Your DWI lawyer will review the case, the facts, the evidence initially obtained to determine if there are any constitutional violations. We as citizens of the United States are accorded certain rights and protections, and if law enforcement does not uphold those rights and protections, evidence obtained through the police officer's misconduct can be thrown out. An example of a constitutional violation includes your Miranda Rights, was it provided appropriately?
Challenges for Improper Administration or Inaccurate Results of Breath or Blood Tests
Regardless if there was an accident or not, if an officer ever suspects you are driving while intoxicated, implied consent requires your submission to a breath or blood test. A good criminal defense lawyer will employ an expert to analyze the results carefully. Through this independent analysis, the expert can identify flaws in the testing, whether it is a flaw associated with the procedures or flaws related to the results of the chemical tests. Your lawyer should be able to skillfully use this information with the intent to have the tests excluded as evidence.
Filing Motions to Suppress, Exclude or Dismiss
Depending on the circumstances of each case, your lawyer should attempt to dismiss the case or exclude evidence before trial. The motions can be used strategically to induce the State into negotiations or to dismiss the case.
Unfulfillment of the Elements of the Offense
There are five elements of Intoxication Assault that must be proven before a conviction can be granted. Proving a prima facie case on these elements can be complex. Operating a motor vehicle in a public place are three elements that are not difficult to demonstrate. The complexity is found in the elements of intoxication and cause of the accident.
- Intoxication. There are three ways one can be deemed intoxicated: (1) BAC at or above 0.08%; (2) absence of normal use of physical faculties; or (3) absence of normal use of mental faculties. Your lawyer will likely attack the administration and/or results of a breath or blood test.
- Cause of Accident. Were you indeed the cause of the accident that caused injury to another person? Your lawyer may employ an expert to reconstruct the scene of the accident. Any number of things could have caused the accident, from human error to vehicle defect, to poor road conditions. As for the human error, the other driver may have been solely or partially at fault. Your lawyer will identify and analyze the circumstances surrounding the accident in a manner that builds your defense and weakens the State's arguments.
The effect of your defense is largely contingent on the quality and experience of your criminal defense or DWI attorney. Doug Murphy, a Board-certified DWI attorney and a Board certified criminal defense attorney, approaches defense from all angles to ensure you get the best outcome for your unique situation. His experience, knowledge, and capabilities are well-known in the Houston, Texas area. In fact, when he's not defending your rights and winning cases, he's helping other DWI lawyers learn more about the law and increase their skills.
Intoxication Assault: The Punishment
If you have been charged with Intoxication Assault, the odds are -- if you did not qualify for a public defender -- you have hired a criminal defense lawyer to represent you. As you learned above, your defense is key to a successful outcome of your case, and your defense is dependent on your legal representative and advocate. With Intoxication Assault charge, you cannot risk hiring a lawyer simply because he or she is the first you found or because he or she is the cheapest. The stakes are too high.
If you are convicted, intoxication assault can incur a prison sentence between two and ten years and/or a fine up to $10,000. If the offense was enhanced to a second degree felony because the injury was to a peace officer, firefighter, or emergency medical personnel, you could receive a prison sentence from two to 20 years and/or a fine up to $10,000.
In addition to incarceration and fines, a first offense can result in a driver's license suspension from 90 days to one year. If you received a second or subsequent Intoxication Assault conviction within five years of the previous offense, your license could be suspended for 90 days to two years. If you have previously been convicted of any DWI offense -- including the offenses of boating while intoxicated, flying while intoxicated, or assembling/operating an amusement ride -- within five years, your license can be suspended for a period of one to two years.
Additionally, if convicted, you could receive any of the following:
- community service up to 1,000 hours;
- installation of an interlock device;
- Participation in an approved alcohol or drug education program; and/or
- court costs and fees.
Contact Doug Murphy Law Firm in Houston, TX
If you or someone you know has been charged with Intoxication Assault, you need the best DWI lawyer possible. Doug Murphy is board certified criminal defense lawyer and a DWI lawyer, a distinction held by only one other lawyer in the state of Texas. The sooner a board certified DWI attorney specialist becomes involved, the sooner the investigating and strategizing can take place for the best possible outcome.
At Doug Murphy Law Firm, we devote our resources and capabilities to DWI cases. We have decades of proven experience and a reputation earned in the courtroom for successful results. Attorney Doug Murphy is dedicated to his DWI practice so much that when he is not fighting to protect the rights of his clients, he is giving back to the legal community to teach other attorneys how to do the same. Contact Doug Murphy today to discuss the circumstances of your case.