Intoxication Assault

The crime of intoxication assault is prosecuted under Texas Penal Code Section 49.07 as a third-degree felony. Texas law provides for harsh penalties if a person operates a motor vehicle in a public place while intoxicated and because of that intoxication causes serious bodily injury to another.

In a prosecution for intoxication assault in Texas, the prosecutor is not required to show that the defendant intended to cause a crash or had any intention to commit the crime. Many of these cases involve a forced blood draw or evidence about the results of a blood test at the hospital. 


Elements of Intoxication Assault under Section 49.07

The elements of intoxication assault under Section 49.07 that must be proven at trial include:

  1. the defendant by accident or mistake;
  2. while operating a motor vehicle;
  3. in a public place;
  4. while intoxicated; and
  5. caused serious bodily injury to another.

Other forms of intoxication assault involve the operation of a aircraft, watercraft, or amusement ride while intoxicated. The crime can also be alleged if a person caused serious bodily injury to another person as a result of assembling a mobile amusement ride while intoxicated.


Definitions in the Texas Intoxication Assault Statute

For purposes of the Intoxication Assault statute, the term “bodily injury” means physical pain, illness, or any impairment of physical condition. The term “serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The term “intoxicated” means 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 having an alcohol concentration of 0.08 or more.

“Alcohol concentration” means the number of grams of alcohol per 210 liters of breath, 100 milliliters of blood, or 67 milliliters of urine.

The term “motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn upon a highway, except a device used exclusively on stationary rails or tracks.

The term “public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.


Penalties for Intoxication Assault in Texas

An offense for intoxication assault is a felony of the third degree. The penalties can be enhanced under Section 49.09(b-4) to a felony of the second degree if it is shown at the trial of the offense that the person caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state.

Under 49.09(b-1), an offense under Section 49.07 for Intoxication Assault 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.

For purposes of enhanced penalties for DWI-related crimes, a conviction for intoxication assault under Section 49.07 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.


Defenses to the Crime of Intoxication Assault

Under Section 49.10, it is not a defense to a prosecution for intoxication assault if the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance.

Under Section 49.12, crimes for intoxication assault and intoxication manslaughter do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.


Finding a Lawyer for Intoxication Assault in Bexar County, TX

If you are under investigation for intoxication assault in the greater San Antonio area, including the city of San Antonio or Bexar County, TX, or charged with the offense by indictment, then contact an experienced criminal defense attorney at Flanary Law Firm, PLLC.

Don Flanary also represents clients charged with intoxication assault for causing serious bodily injury to another as a result of assembling a mobile amusement ride while intoxicated or while operating a boat, watercraft, or airplane. He also represents clients charged with intoxication manslaughter if the crash caused or contributed to the death of another person.

Can Don Flanary, an experienced DWI Lawyer in San Antonio, TX, to discuss charged under Texas Penal Code Section 49.07, Intoxication Assault. Find the best attorney for your case so that you can fight this serious third-degree felony charge.


This article was last updated on Thursday, January 19, 2017.

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