What Is Intoxication Assault?
Under Texas Penal Code Section 49.07, intoxication assault is the felony crime of causing, by reason of intoxication, the serious bodily injury of another, while operating a motor vehicle in a public place. In plain terms, intoxication assault is what Texas calls the DWI crime when the intoxication causes serious injury to another. If you seriously hurt someone in a DWI motor vehicle accident, you may face an intoxication assault charge. Texas Penal Code Section 49.04 defines the basic DWI crime, not involving another's serious injury. Several other Texas penal code sections elevate the basic DWI crime for things like intoxicated driving with a child passenger, intoxicated driving causing death, or second, third, or fourth offense DWIs. Intoxication assault is one of those elevated DWI crimes.
Can I Face Both DWI and Intoxication Assault Charges?
No. The basic Texas DWI crime under Texas Penal Code Section 49.04 is a lesser included offense of a Texas intoxication assault charge under Texas Penal Code Section 49.07. A lesser included offense means that the prosecutor would have to prove all the elements of that offense to prove the higher charge. Both the basic DWI crime and intoxication assault require the prosecutor to prove (1) operating (2) a motor vehicle (3) while intoxicated (4) in a public place. The intoxication assault crime just adds the element of the intoxication causing another's serious bodily injury. Because the DWI crime is a lesser included offense of the intoxication assault crime, for a prosecutor to charge and convict you of both the DWI crime and intoxication assault would constitute double jeopardy, violating your constitutional rights. You should only face the potential for conviction under one of the two charges, not both, although the prosecutor may pursue the option of charging either one of the two crimes.
Would Slugging Someone Constitute Intoxication Assault?
No. For a prosecutor to charge a defendant with intoxication assault under Texas Penal Code Section 49.07, the defendant must have been operating a motor vehicle or another qualifying piece of equipment (see the next answer). Simply striking another person with a fist while intoxicated would not constitute intoxication assault under Texas Penal Code Section 49.07. Texas certainly charges under other penal code sections other assault crimes, like punching or shooting someone without legal justification, when those crimes do not involve a motor vehicle or qualifying piece of equipment. And some of those assaults could of course involve intoxication. But an assault, even an intoxicated assault, without a motor vehicle or other qualifying piece of equipment involved won't result in an intoxication assault charge under Texas Penal Code Section 49.07. Intoxication assault is instead what Texas calls the DWI crime when the intoxication involves operating a motor vehicle in a public place or other qualifying pieces of equipment, with the intoxication causing another's serious injury.
Must a Motor Vehicle Be Involved for Intoxication Assault?
No, certain other pieces of equipment will also do. Texas Penal Code Section 49.07 states that a defendant commits the intoxication assault defense when causing serious bodily injury “while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated….” Motor vehicles are by far the most common piece of transportation equipment involved in DWI charges including intoxication assault charges. But operating an aircraft, watercraft, or amusement ride while intoxicated will also qualify for the intoxication assault crime when the intoxication causes serious bodily injury. Boating while intoxicated and operating an aircraft while intoxicated are other Texas crimes, even when not causing serious bodily injury. But either driving a motor vehicle, operating a boat, or operating an aircraft, and even operating an amusement ride, while intoxicated with intoxication causing serious bodily injury to another all qualify for the intoxication assault crime.
What Counts as a Motor Vehicle for Intoxication Assault?
More vehicles count as motor vehicles for purposes of an intoxication assault charge than you might think. For purposes of the intoxication assault crime and other DWI crimes, Texas Penal Code Section 49.01(3) defines a motor vehicle as having “the meaning assigned by Section 32.34(a).” Texas Penal Code Section 32.34(a) 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.” Thus, to count for an intoxication assault charge, the motor vehicle need not be street legal. Prosecutors have argued under the statute that any motorized vehicle capable of transporting or drawing a person or property on a highway, including things like off-road vehicles and even go-karts, will do, even if its manufacturer did not design it for public highways. Prosecutors have even charged bicyclists with DWI crimes, although the statute's “motor vehicle” language clearly indicates that bicycles do not qualify for intoxication assault and other DWI crimes. Motorized vehicles of many types, though, will do.
Can I Commit Intoxication Assault on a Motorcycle?
Yes. With the broad definition that Texas Penal Code Sections 49.01(3) and 34.32(a) give to motor vehicles, motorcycle DWI is basically the same DWI crime charged under Texas Penal Code Section 49.04 as a motor vehicle DWI. And the same would be true as to the intoxication assault crime charged under Texas Penal Code Section 49.07. Whether the intoxicated operator causes serious bodily injury to another with a car, truck, or motorcycle, intoxication assault would be the crime.
Can I Commit Intoxication Assault on a Golf Cart?
Yes, depending on where you operate the golf cart. Operating a golf cart in a public place while intoxicated, causing serious bodily injury, can constitute intoxication assault under Texas Penal Code Section 49.07. A golf cart qualifies as a motor vehicle under the penal code sections cited and quoted just above. But to prove an intoxication assault charge under Section 49.07, the prosecutor must have evidence of the golf cart's operation “in a public place.” Texas penal code sections do not define a “public place.” A public highway or road would certainly qualify as a public place. But Texas's appellate courts have decided cases indicating that “public place” also means a place to which the public has access. Thus, operating a golf cart on a golf course or cart path to which the public has access can qualify as operating a motor vehicle in a public place. Operating a golf cart on your own land from which you exclude the public, or on other private lands to which the public have no access, should not result in an intoxication assault charge. In either case, beware operating golf carts while intoxicated.
What If the Serious Injury Occurs on Private Land?
A serious bodily injury on private land, caused by a motor vehicle driver's intoxication, can result in an intoxication assault charge under Texas Penal Code Section 49.07 if the vehicle's operation was in a public place, meaning a place to which the public had access. The land's ownership, whether public or private, isn't the question. Under Texas case law, the question is instead whether the public has access to the land. For example, intoxication assault charges could result under any of these circumstances, if the operator's intoxication caused serious bodily injury to another:
- operating a motor vehicle in the parking lots and drives of a privately owned mall or shopping area to which the public has access;
- operating a motor vehicle on a private road to which the public has access;
- operating a motor vehicle in a privately owned parking lot of a restaurant or retail facility open to the public;
- operating a motor vehicle in a privately owned parking lot of a manufacturing or other facility, where the public has parking lot access;
- operating an off-road motor vehicle on privately owned lands open to the public for off roading;
- operating a motorcycle on private land open to the public for motorcycle off-roading; or
- operating a golf cart on a privately owned course open to the public.
Whose Serious Injury Must the Intoxication Cause?
Basically, anyone's serious injury other than the intoxicated motor vehicle driver's injury will do. Texas Penal Code Section 49.07 says only that the serious injury must be “to another.” Thus, serious injury to an occupant of the intoxicated driver's own vehicle will do. So, too, will serious injury to a driver or other occupant of another motor vehicle. But so, too, will serious injury to a pedestrian, bicyclist, or motorcyclist. Basically, serious injury to anyone other than the intoxicated driver can be the basis for an intoxication assault charge under Texas Penal Code Section 49.07, if the intoxication caused the accident resulting in the injury.
What If My Intoxication Seriously Injured Only Myself?
Prosecutors cannot charge you with the intoxication assault crime under Texas Penal Code Section 49.07 if the only person you seriously injure due to your intoxication is yourself. Thus, if you have one or more passengers in your own vehicle, none of whom suffer serious injury, but you do suffer serious injury from your intoxication caused crash, you should not face an intoxication assault charge. The same would be true if you suffer serious injury in a collision that your intoxication caused with another motor vehicle, but the driver and any other occupants of the other vehicle do not suffer serious injury. You should not face an intoxication assault charge.
Does It Matter Who Gets Seriously Injured?
Yes, it can matter who suffers the serious injury. Texas Penal Code Section 49.09(b-1) enhances the intoxication assault charge from a third-degree felony to a second-degree felony if the driver's intoxication injures a firefighter or emergency medical personnel acting in the discharge of their official duties. Texas Penal Code Section 49.09(b-1) enhances the intoxication assault charge from a third-degree felony to a first-degree felony if the driver's intoxication injures a peace officer or judge acting in the discharge of their official duties. Firefighters, police officers, and emergency medical personnel face special risks attending to persons injured along the public highways. When a drunk driver seriously injures one of those personnel, the drunk driver may face enhanced felony intoxication assault charges.
How Serious Must a Person's Injuries Be?
To face an intoxication assault charge under Texas Penal Code Section 49.07, another person must suffer “serious bodily injury.” Section 49.07(b) defines serious bodily injury to mean “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.” While that definition can sound serious, prosecutors may in some cases pursue charges based not on the disfigurement or impairment alternatives, where the actual disfigurement must be serious and permanent or an actual impairment must be protracted, but on the “substantial risk of death” alternative, where the injury may not otherwise appear so serious. Skilled and experienced defense counsel is necessary in these disputed-injury cases.
Does the Type of Serious Injury Matter?
Yes, the type of serious bodily injury can matter in special cases. Texas Penal Code Section 49.09(b-4) enhances the intoxication assault charge from a third-degree felony to a second-degree felony if the intoxication caused another to suffer a traumatic brain injury leaving them in a persistent vegetative state.
What If the Injured Person Is Exaggerating?
The injuries must be genuine, not fake or exaggerated. When a person fakes or exaggerates their injury, your retained Texas DWI Specialist can use medical records, medical examination, and cross-examination to discredit any person testifying falsely or exaggerating facts. Skilled defense services can make the difference between winning or losing an intoxication assault charge.
Must the Defendant Have Been at Fault for Intoxication Assault?
Not necessarily. Texas Penal Code Section 49.07(a) states expressly that the defendant commits the intoxication assault crime whether the intoxication causes serious bodily injury to another “by accident or mistake.” The intoxication assault crime does not require that the prosecutor prove that the intoxicated driver drove carelessly or recklessly. The intoxicated driver may have been at fault or not at fault. But the prosecutor must still prove that intoxication caused the other person's serious bodily injury. Causation can thus be a winning defense in certain cases. If, for instance, a sober driver with normal mental and physical faculties would have been in the same accident as the intoxicated defendant driver, the prosecutor cannot prove causation, and the defendant should not face an intoxicated assault conviction. The penal code does not require proof of the defendant's fault, but where driver fault is absent, the causation element may be a winning defense.
What Level Felony Is Intoxication Assault?
Intoxication assault is indeed a felony crime, not a misdemeanor. Texas Penal Code Section 49.07(c) defines intoxication assault as a third-degree felony except as the enhancement statute Section 49.09 otherwise provides. Texas classifies felonies into first, second, and third degrees. Saying that intoxication assault is ordinarily a third-degree felony is saying that it is ordinarily a lesser felony, unless an enhancement raises the third-degree felony charge to a first or second-degree felony charge. As shown above, the enhancement statute Texas Penal Code Section 49.09(b-1) elevates the ordinary third-degree charge to second-degree for injuring a firefighter or emergency medical personnel discharging their duties and to the second degree for injuring a peace officer or judge discharging their duties. Thus, intoxication assault could end up as either a first, second, or third-degree felony, depending on who suffers injury.
What Are the Penalties for Intoxication Assault?
Texas law punishes intoxication assault under Texas Penal Code Section 49.07, as a third-degree felony without any enhancement, with prison of from two to ten years and a fine up to $10,000. Enhancement for injury to a firefighter, emergency medical personnel, or peace officer increases the potential imprisonment to up to twenty years rather than a maximum of ten years. Driver's license suspension, community service, installation of an interlock device, participation in drug or alcohol programs, and court costs and program fees are other common penalties.
Are the Intoxication Assault Penalties Different for a Minor?
No, the intoxication assault penalties for a minor are the same as for an adult, although the defendant's age and other circumstances may affect sentencing. A minor's DWI without causing injury has different penalties. But the intoxication assault charge and penalties are the same as for adults when the minor's intoxication causes serious bodily injury.
How Should I Deal with the Media?
Don't. You should not be speaking to the media if prosecutors have charged you with intoxication assault or another DWI crime. Instead, retain premier Texas DWI Specialist defense attorney Doug Murphy, who is one of only two Texas lawyers board certified in both DWI defense and criminal law. Best Lawyers named attorney Murphy 2023 Lawyer of the Year for Houston DWI defense. Call (713) 229-8333 or go online now to retain attorney Murphy for your premier DWI defense.
