What is the Definition of “Intoxicated”?
Section 49.01(2) of the Texas Penal Code:
“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.
Just a few things that are important to point out under this definition. First, the State does not have to prove that you are “drunk” in a DWI case. Under subsection (B), the State need only prove by proof beyond a reasonable doubt that your blood alcohol concentration (BAC) was 0.08 or above. This illustrates why in most cases I would advise individuals to refuse any breath or blood tests requested by law enforcement, because you might not be “drunk”, but a breath/blood test might show you with BAC at or above 0.08.
Even if you have a BAC lower the 0.08, the State could still choose to charge an individual with DWI under subsection (A). So there may be cases in which an individual is below the legal limit, but still might be charged with DWI, if they perform poorly on the Standard Field Sobriety Tests (SFSTs). Again, if you are stopped and suspected of DWI, I would politely refuse to perform the SFSTs.
Furthermore, section 49.01(2)(A) also states that you are “intoxicated” if your normal physical/mental abilities are diminished by the introduction of drugs or a combination of alcohol and drugs, this includes the use of illegal drugs, over the counter drugs, and prescription drugs. A lot of people, including some attorneys, are not aware that a person can be charged with a DWI while operating a motor vehicle under the use of prescription drugs and/or other controlled substance. Subsection (A) does not require that an individual have introduced alcohol into the body to charged with DWI. The State could accuse you of having a diminished physical/mental capacity due to the introduction of medications prescribed by your doctor or taken over-the-counter. Of course in these cases, the State has to prove whether the medication or controlled substance actually diminished your normal physical/mental capacity to state that you are “intoxicated”. The State often uses a Drug Recognition Expert (DRE) to attempt to prove these types of DWI cases.
To briefly summarize, there are several aspects of “intoxication” in a DWI case, that the average person might not realize. “Intoxication” does not equal “drunk”. Generally, it’s advisable to refuse to submit to any field sobriety testing or any breath/blood testing. Don’t give the State any evidence to help them prove their DWI charge against you.
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