The Matlock Law Firm, P.C.
Driving While Intoxicated
Driving While Intoxicated is perhaps the most unique criminal charge in the State of Texas. Yet, despite that, it is perhaps the most prosecuted crime in Texas. A DWI is essentially an opinion crime; that is, it is the opinion of the officer whether a person is charged with DWI. Likewise, it is the opinion of the jury as to whether the person was intoxicated.
Because the very essence of DWI is fundamentally unique, so too must the defense of a Driving While Intoxicated charge. The approach to a successful defense of a DWI charge requires understanding not only the police procedures in evaluating a DWI case, but also having a thorough understanding of the so-called science behind the concept of intoxication.
The typical Driving While Intoxicated case involves the use of what are known as the Standardized Field Sobriety Tests. These tests involve the performance of divided attention tests. These tests include the One Leg Stand Test, the Walk and Turn Test, and the Horizontal Gaze Nystagmus Test.
The purpose of these tests is to indicate to the arresting officer the existence of “clues.” The number of clues exhibited by a suspect equate to the final score the suspect receives for the given test. The problem is that a “failing” score might well be getting up to 80% of the test correct!
In addition to the SFSTs, law enforcement also seek to obtain a Blood Alcohol Content result. This can be accomplished through either a breath test or a blood test. Not only can the State request a breath or blood specimen, but law enforcement can also seek a search warrant for a suspect’s blood specimen to be tested.
Typically, law enforcement in North Texas maintain video cameras in patrol cars. These cameras are used primarily in DWI stops and arrests. The purpose of the camera is to capture the performance of the suspect’s SFSTs. Likewise, most police stations have video cameras to record the suspect performing the tests and their demeanor. These videos are in turn used as evidence in a later DWI trial. These are possibly the two most important pieces of evidence in a DWI trial. Knowing how to effectively use and diffuse them is the difference between winning and losing a DWI trial.
Texas Driving While Intoxicated law is found in Chapter 49 of the Texas Penal Code.
§ 49.01. DEFINITIONS. In this chapter:
(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.
(2) "Intoxicated" means:
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(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.
(3) "Motor vehicle" has the meaning assigned by
Section 32.34(a).
(4) "Watercraft" means a vessel, one or more water
skis, an aquaplane, or another device used for transporting or
carrying a person on water, other than a device propelled only by
the current of water.
(5) "Amusement ride" has the meaning assigned by
Section 2151.002, Occupations Code.
(6) "Mobile amusement ride" has the meaning assigned
by Section 2151.002, Occupations Code.
§ 49.02. PUBLIC INTOXICATION. (a) A person commits an
offense if the person appears in a public place while intoxicated to
the degree that the person may endanger the person or another.
(a-1) For the purposes of this section, a premises licensed
or permitted under the Alcoholic Beverage Code is a public place.
(b) It is a defense to prosecution under this section that
the alcohol or other substance was administered for therapeutic
purposes and as a part of the person's professional medical
treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under
this section is a Class C misdemeanor.
(d) An offense under this section is not a lesser included
offense under Section 49.04.
(e) An offense under this section committed by a person
younger than 21 years of age is punishable in the same manner as if
the minor committed an offense to which Section 106.071, Alcoholic
Beverage Code, applies.
§ 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR
VEHICLE. (a) In this section:
(1) "Open container" means a bottle, can, or other
receptacle that contains any amount of alcoholic beverage and that
is open, that has been opened, that has a broken seal, or the
contents of which are partially removed.
(2) "Passenger area of a motor vehicle" means the area
of a motor vehicle designed for the seating of the operator and
passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage
container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the
vehicle, if the vehicle does not have a trunk.
(3) "Public highway" means the entire width between
and immediately adjacent to the boundary lines of any public road,
street, highway, interstate, or other publicly maintained way if
any part is open for public use for the purpose of motor vehicle
travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly
possesses an open container in a passenger area of a motor vehicle
that is located on a public highway, regardless of whether the
vehicle is being operated or is stopped or parked. Possession by a
person of one or more open containers in a single criminal episode
is a single offense.
(c) It is an exception to the application of Subsection (b)
that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed,
maintained, or used primarily for the transportation of persons for
compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or
motorized house trailer, including a self-contained camper, a motor
home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under
this section, instead of taking the person before a magistrate,
shall issue to the person a written citation and notice to appear
that contains the time and place the person must appear before a
magistrate, the name and address of the person charged, and the
offense charged. If the person makes a written promise to appear
before the magistrate by signing in duplicate the citation and
notice to appear issued by the officer, the officer shall release
the person.
§ 49.04. DRIVING WHILE INTOXICATED. (a) A person
commits an offense if the person is intoxicated while operating a
motor vehicle in a public place.
(b) Except as provided by Subsection (c) and § 49.09, an
offense under this section is a Class B misdemeanor, with a minimum
term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this
section that at the time of the offense the person operating the
motor vehicle had an open container of alcohol in the person's
immediate possession, the offense is a Class B misdemeanor, with a
minimum term of confinement of six days.
§ 49.045. DRIVING WHILE INTOXICATED WITH CHILD
PASSENGER. (a) A person commits an offense if:
(1) the person is intoxicated while operating a motor
vehicle in a public place; and
(2) the vehicle being operated by the person is
occupied by a passenger who is younger than 15 years of age.
(b) An offense under this section is a state jail felony.
§ 49.05. FLYING WHILE INTOXICATED. (a) A person
commits an offense if the person is intoxicated while operating an
aircraft.
(b) Except as provided by Section 49.09, an offense under
this section is a Class B misdemeanor, with a minimum term of
confinement of 72 hours.
§ 49.06. BOATING WHILE INTOXICATED. (a) A person
commits an offense if the person is intoxicated while operating a
watercraft.
(b) Except as provided by Section 49.09, an offense under
this section is a Class B misdemeanor, with a minimum term of
confinement of 72 hours.
§ 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE
WHILE INTOXICATED. (a) A person commits an offense if the person
is intoxicated while operating an amusement ride or while
assembling a mobile amusement ride.
(b) Except as provided by Subsection (c) and Section 49.09,
an offense under this section is a Class B misdemeanor with a
minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this
section that at the time of the offense the person operating the
amusement ride or assembling the mobile amusement ride had an open
container of alcohol in the person's immediate possession, the
offense is a Class B misdemeanor with a minimum term of confinement
of six days.
§ 49.07. INTOXICATION ASSAULT. (a) A person commits an
offense if the person, by accident or mistake:
(1) while operating an aircraft, watercraft, or
amusement ride while intoxicated, or while operating a motor
vehicle in a public place while intoxicated, by reason of that
intoxication causes serious bodily injury to another; or
(2) as a result of assembling a mobile amusement ride
while intoxicated causes serious bodily injury to another.
(b) In this section, "serious bodily injury" means 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.
(c) Except as provided by Section 49.09, an offense under
this section is a felony of the third degree.
§ 49.08. INTOXICATION MANSLAUGHTER. (a) A person
commits an offense if the person:
(1) operates a motor vehicle in a public place,
operates an aircraft, a watercraft, or an amusement ride, or
assembles a mobile amusement ride; and
(2) is intoxicated and by reason of that intoxication
causes the death of another by accident or mistake.
(b) Except as provided by Section 49.09, an offense under
this section is a felony of the second degree.
§ 49.09. ENHANCED OFFENSES AND PENALTIES. (a) Except
as provided by Subsection (b), an offense under Section 49.04,
49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum
term of confinement of 30 days, if it is shown on the trial of the
offense that the person has previously been convicted one time of an
offense relating to the operating of a motor vehicle while
intoxicated, an offense of operating an aircraft while intoxicated,
an offense of operating a watercraft while intoxicated, or an
offense of operating or assembling an amusement ride while
intoxicated.
(b) An offense under Section 49.04, 49.05, 49.06, or 49.065
is a felony of the third degree if it is shown on the trial of the
offense that the person has previously been convicted:
(1) one time of an offense under Section 49.08 or an
offense under the laws of another state if the offense contains
elements that are substantially similar to the elements of an
offense under Section 49.08; or
(2) two times of any other offense relating to the
operating of a motor vehicle while intoxicated, operating an
aircraft while intoxicated, operating a watercraft while
intoxicated, or operating or assembling an amusement ride while
intoxicated.
(b-1) An offense under Section 49.07 is a felony of the
second degree if it is shown on the trial of the offense that the
person caused serious bodily injury to a peace officer, a
firefighter, or emergency medical services personnel while in the
actual discharge of an official duty.
(b-2) An offense under Section 49.08 is a felony of the
first degree if it is shown on the trial of the offense that the
person caused the death of a person described by Subsection (b-1).
(b-3) For the purposes of Subsection (b-1):
(1) "Emergency medical services personnel" has the
meaning assigned by Section 773.003, Health and Safety Code.
(2) "Firefighter" means:
(A) an individual employed by this state or by a
political or legal subdivision of this state who is subject to
certification by the Texas Commission on Fire Protection; or
(B) a member of an organized volunteer
fire-fighting unit that:
(i) renders fire-fighting services without
remuneration; and
(ii) conducts a minimum of two drills each
month, each at least two hours long.
(c) For the purposes of this section:
(1) "Offense relating to the operating of a motor
vehicle while intoxicated" means:
(A) an offense under Section 49.04 or 49.045;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was a motor vehicle;
(C) an offense under Article 6701l-1, Revised
Statutes, as that law existed before September 1, 1994;
(D) an offense under Article 6701l-2, Revised
Statutes, as that law existed before January 1, 1984;
(E) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was a
motor vehicle; or
(F) an offense under the laws of another state
that prohibit the operation of a motor vehicle while intoxicated.
(2) "Offense of operating an aircraft while
intoxicated" means:
(A) an offense under Section 49.05;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was an aircraft;
(C) an offense under Section 1, Chapter 46, Acts
of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
Vernon's Texas Civil Statutes), as that law existed before
September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was an
aircraft; or
(E) an offense under the laws of another state
that prohibit the operation of an aircraft while intoxicated.
(3) "Offense of operating a watercraft while
intoxicated" means:
(A) an offense under Section 49.06;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was a watercraft;
(C) an offense under Section 31.097, Parks and
Wildlife Code, as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was a
watercraft; or
(E) an offense under the laws of another state
that prohibit the operation of a watercraft while intoxicated.
(4) "Offense of operating or assembling an amusement
ride while intoxicated" means:
(A) an offense under Section 49.065;
(B) an offense under Section 49.07 or 49.08, if
the offense involved the operation or assembly of an amusement
ride; or
(C) an offense under the law of another state
that prohibits the operation of an amusement ride while intoxicated
or the assembly of a mobile amusement ride while intoxicated.
(d) For the purposes of this section, a conviction for an
offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07,
or 49.08 that occurs on or after September 1, 1994, is a final
conviction, whether the sentence for the conviction is imposed or
probated.
(e) Repealed by Acts 2005, 79th Leg., Ch. 996, § 3, eff.
September 1, 2005.
(f) Repealed by Acts 2005, 79th Leg., Ch. 996, § 3, eff.
September 1, 2005.
(g) A conviction may be used for purposes of enhancement
under this section or enhancement under Subchapter D, Chapter 12,
but not under both this section and Subchapter D.
(h) This subsection applies only to a person convicted of a
second or subsequent offense relating to the operating of a motor
vehicle while intoxicated committed within five years of the date
on which the most recent preceding offense was committed. The court
shall enter an order that requires the defendant to have a device
installed, on each motor vehicle owned or operated by the
defendant, that uses a deep-lung breath analysis mechanism to make
impractical the operation of the motor vehicle if ethyl alcohol is
detected in the breath of the operator, and that requires that
before the first anniversary of the ending date of the period of
license suspension under Section 521.344, Transportation Code, the
defendant not operate any motor vehicle that is not equipped with
that device. The court shall require the defendant to obtain the
device at the defendant's own cost on or before that ending date,
require the defendant to provide evidence to the court on or before
that ending date that the device has been installed on each
appropriate vehicle, and order the device to remain installed on
each vehicle until the first anniversary of that ending date. If
the court determines the offender is unable to pay for the device,
the court may impose a reasonable payment schedule not to extend
beyond the first anniversary of the date of installation. The
Department of Public Safety shall approve devices for use under
this subsection. Section 521.247, Transportation Code, applies to
the approval of a device under this subsection and the consequences
of that approval. Failure to comply with an order entered under
this subsection is punishable by contempt. For the purpose of
enforcing this subsection, the court that enters an order under
this subsection retains jurisdiction over the defendant until the
date on which the device is no longer required to remain installed.
To the extent of a conflict between this subsection and Section
13(i), Article 42.12, Code of Criminal Procedure, this subsection
controls.
§ 49.10. NO DEFENSE. In a prosecution under Section
49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the
fact that the defendant is or has been entitled to use the alcohol,
controlled substance, drug, dangerous drug, or other substance is
not a defense.
§ 49.11. PROOF OF MENTAL STATE UNNECESSARY.
(a) Notwithstanding Section 6.02(b), proof of a culpable mental
state is not required for conviction of an offense under this
chapter.
(b) Subsection (a) does not apply to an offense under
Section 49.031.
Fort Worth Criminal Defense Attorney/ Tarrant County Criminal Defense Lawyer/
Fort Worth DWI Lawyer/ Tarrant County DWI Defense Attorney
The Matlock Law Firm, P.C.
The Purpose of the Firm
Texas Appeals
Practice Areas
Fort Worth/ Tarrant County/ Texas Criminal Defense Attorney
Shawn Matlock
The Matlock Law Firm, P.C.
309 W. Seventh Street
Suite 1610
Fort Worth, Texas 76102
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(817)332-3000 local
(888) 628-5025 toll free
We handle criminal cases in all Texas State Courts and Federal Courts around the country
