Intoxication Manslaughter

Intoxication manslaughter (often called “vehicular manslaughter while intoxicated” or "DWI manslaughter") under Penal Code Section 49.08 is charged as a Second-Degree Felony. The penalties are enhanced to a First-Degree Felony if the victim is a peace officer, firefighter, or emergency medical services personnel.

Some of these cases involving the death of a passenger in the defendant’s vehicle. In other cases, the defendant is a complete stranger to the victim who is killed as a result of a crash between two vehicles or when a pedestrian is killed.

Because a sentence of ten (10) years probation is allowed in some of these cases, the defendant might agree to plead guilty to intoxicated manslaughter and elect to have a jury decide the punishment. Jurors often decide to impose probation in these cases because the defendant did not intend to cause anyone's death, has no prior criminal record, and caused the death of only one other person. The prosecutor will often argue that the offense was worse than an intentional conduct with a specific target because a drunken driver targets everyone.

Although less commonly prosecuted, the intoxication manslaughter statute also prohibits operating an aircraft, a boat or another type of watercraft, or amusement ride while intoxication when that intoxication causes the death of another by accident or mistake.

Attorney for Intoxication Manslaughter in San Antonio, TX

If you were charged by indictment with the offense of intoxication manslaughter in the greater San Antonio area, then contact an experienced DWI lawyer at Flanary Law Firm, PLLC. With offices conveniently located in San Antonio, Donald Flanary is available for a consultation to discuss the case. 

Many of these cases involve the results of a blood test either taken at the direction of a law enforcement officer (often called "legal blood") or by medical personnel at the hospital for medical purposes (often called "medical blood"). Don Flanary is experienced in fighting to exclude the blood evidence because of an illegal seizure. He is also experienced in attacking the blood test results to show a lack of accuracy or reliability in the testing methods utilized in your case.

The best results in these cases require an attorney to fight the charges at every stage of the case. It is important for the attorney to immediately preserve exculpatory evidence that can be lost with the passage of time in a traffic homicide investigation including surveillance video, evidence from the vehicles involved in the crash, and evidence at the scene that is necessary to reconstruct the accident.

Call (210) 738-8383 to discuss your case today.


Elements of Manslaughter by Operating a Vehicle while Intoxicated

The statute for the crime of Intoxication Manslaughter is found at Section 49.08. The intoxication manslaughter statute prohibits a person from:

  1. operating a motor vehicle in a public place;
  2. while intoxicated;
  3. when by reason of that intoxication the defendant causes the death of another by accident or mistake.

Although manslaughter or vehicular manslaughter requires some proof of a reckless act or reckless driving, the crime of intoxicated manslaughter presumes “recklessness” by virtue of the fact that the driver operated the vehicle while intoxicated. As a result, the prosecutor is not required to show “reckless driving.”

The crime of intoxication manslaughter does not have a “mens rea” element that requires proof that the defendant intentionally committing the crime or intended to cause the death of another person involved in the crash. Instead, the prosecutor's burden is limited to proving an intent to consume an alcoholic beverage and operate a motor vehicle.


Definitions of Terms Related to Intoxication Manslaughter

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.

“Motor vehicle” means 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.

“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.

The term “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 “controlled substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.


Concurrent Causation in Intoxication Manslaughter Cases

The issue of concurrent causation comes up in many intoxication manslaughter and intoxication assault cases. In many of these cases, the evidence shows that the victim has also been drinking, was driving too slowly for the conditions, was driving recklessly, or was impaired by drugs. In other cases, the causation issue can arise because the victim suffered from medical malpractice while being treated for his or her injuries or survived the crash but suffered brain damage so severe that the victim was later revoked from life support because there was no realistic hope of recovery.

In other cases, the causation issue can arise because the victim suffered from medical malpractice while being treated for his or her injuries or survived the crash but suffered brain damage so severe that the victim was later revoked from life support because there was no realistic hope of recovery.

Texas Penal Code §6.04(a) defines the term “concurrent causation” as follows:

A person is criminally responsible if the result would not have occurred but for his conduct, operating alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

For this reason, a concurrent cause is a separate case that is in addition to the defendant’s conduct. The issue of concurrent causation is not raised unless there is evidence that the concurrent cause was clearly sufficient by itself to cause the result and the defendant actions were clearly insufficient. When the defendant brings forth evidence that the result was in no way caused by his action but was instead attributable entirely to some other cause, the prosecutor must provide that the death of another person would not have occurred “but for” the defendant’s intoxication.

In these cases, the defendant will seek a jury instruction on concurrent causation under Penal Code §6.04. To get the jury instruction, the court will require that the evidence must raise the issue of concurrent causation with some evidence that the concurrent cause was clearly sufficient by itself to produce the result and the actor’s conduct was clearly insufficient to cause the result.

Even if the defendant gets the jury instruction on concurrent causation, the prosecution can show that two possible combinations exist to satisfy the ‘but for’ requirement:

  1. the defendant’s conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or
  2. the defendant’s conduct and the other cause together may be sufficient to have caused the harm.

If one of the “but for” requirements is shown, then the prosecution can still obtain a conviction even where a concurrent cause is shown and the defense obtains a jury charge on the issue. On the other hand, if the concurrent cause is clearly sufficient, by itself, to produce the result and the defendant’s conduct, by itself, is clearly insufficient, then the defendant cannot be convicted.


Penalties for Intoxication Manslaughter

The penalties for intoxication manslaughter depend on a host of factors such as whether the defendant has any prior criminal record or DWI-related convictions. The penalties can also depend on whether the victim was a peace officer, firefighter, or emergency medical services personnel.

The Second Degree Felony Version of Intoxication Manslaughter

Intoxication manslaughter is a second-degree felony punishable by a minimum of 2 years and a maximum of 20 years in the Texas Department of Corrections (TDS) and a fine that does not exceed $10,000.

In some intoxication manslaughter cases for a first offense involving the death of only one victim, the court might impose 10 years probation. With probation comes a minimum of 120 days in jail with the following types of special conditions:

  1. monthly reporting to the probation officer;
  2. at least 200 hours of community service and up to 800 hours of community service;
  3. completion of an approved DWI education class that must be started within 180 days of being put on probation;
  4. drug and alcohol evaluation and the successful completion of any recommended follow-up treatment.

If more than one victim died in the accident, then the person can be charged with one count of Intoxication Manslaughter for each death. The law allows the judge to run the sentences consecutive to each other (back to back) instead of concurrent (at the same time). Also, if one person is killed and another is seriously injured, then the court can run the sentences for intoxication manslaughter and intoxication assault consecutively (back to back).

In vehicular homicide cases, the prosecutor will often allege that the vehicle the defendant was driving was a “deadly weapon” making it less likely that the person will be eligible for parole if the person is convicted and sentenced to prison. Such a designation also prohibits the court from giving the defendant probation.

The First Degree Version of Intoxication Manslaughter

For a crash that occurred after September 1, 2007, under Section 49.08(b), the penalties for the offense of intoxication manslaughter are enhanced to a first degree felony if the offense of Intoxication Manslaughter caused the death of an emergency medical services personnel, peace officer or firefighter while in actual discharge of an official duty. The first-degree felony version of intoxication manslaughter is punishable by a minimum of 5 years and a maximum of 99 years in the Texas Department of Corrections (TDS) and a $10,000 fine.

The Texas legislature required these enhanced penalties because emergency responders such as police officers and firefighters work hard to keep the public safe. Unfortunately, these public servants can be injured or killed by a drunk driver. Texas law already places a unique value on the lives of public servants. For instances, Texas law also provides for enhanced penalties for the assault, aggravated assault, or murder of a peace officer or firefighter. Increasing the penalty for intoxication manslaughter of a peace officer or firefighter was consistent with the enhanced penalties already provided in other areas of Texas law.

For purposes of determining when the enhanced penalties apply, the statute scheme defines the terms used in the statutory scheme. "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code. Section 773.003(10) defines the term “emergency medical services personnel" to include any of the following:

  • a licensed paramedic;
  • an emergency medical technicians--paramedic;
  • an advanced emergency medical technicians;
  • an emergency medical technicians; or
  • an emergency care attendant.

Under Section 773.003(11), the term “emergency medical services provider" means a person who uses or maintains emergency medical services vehicles, medical equipment, and emergency medical services personnel to provide emergency medical services. Additionally, the term “emergency medical services vehicle" means:

  • a specialized emergency medical services vehicle; 
  • a mobile intensive-care unit; 
  • an advanced life-support emergency medical services vehicle; or
  • a basic life-support emergency medical services vehicle;

For purposes of the enhanced penalties for intoxication manslaughter involving the death of a firefighter, the term "firefighter" is defined to mean: 

  • 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
  • a member of an organized volunteer fire-fighting unit that:
    • renders fire-fighting services without remuneration; and
    • conducts a minimum of two drills each month, each at least two hours long.

Other Forms of Intoxication Manslaughter in Texas

Although less commonly prosecuted, the intoxication manslaughter statute also prohibits operating a boat or another type of watercraft, an aircraft, or an amusement ride while intoxication when that intoxication causes the death of another by accident or mistake.

Intoxication Manslaughter with a Watercraft

Under the intoxication manslaughter statute, the term “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.

Intoxication Manslaughter While Operating an Amusement Ride

Under the intoxication manslaughter statute, the term “amusement ride” means a mechanical device that carries passengers along, around, or over a fixed or restricted course or within a defined area for the purpose of giving the passengers amusement, pleasure, or excitement. The term does not include a coin-operated ride is manually, mechanically, or electrically operated, is customarily placed in a public location, and does not normally require the supervision or services of an operator or nonmechanized playground equipment, including a swing, seesaw, stationary spring-mounted animal feature, rider-propelled merry-go-round, climber, playground slide, trampoline, and physical fitness device.

The term “mobile amusement ride” is defined to mean an amusement ride that is designed or adapted to be moved from one location to another and is not fixed at a single location.


Additional Resources

Texas Section 49.08. Intoxication Manslaughter - Visit the website of the Texas Legislature to find the complete statutory language in Section 49.08 for intoxication manslaughter which was added by the Acts 1993 of the 73rd Legislature under Chapter 900 in Section 1.01 which became effective on September 1, 1994. The statute was amended effective January 1, 2000, and September 1, 2007.


Finding a Lawyer for Manslaughter Intoxication in Texas

If you were involved in a vehicular homicide, then contact an experienced criminal defense attorney at Flanary Law Firm, PLLC. Call for a free consultation to discuss the bond conditions and getting out of jail while the case is pending. Also learn more about the criminal charge, possible punishments and the best defenses that can be used to fight the case.

Don Flanary represents clients charged with serious felony DWI offenses such as Manslaughter Intoxication and Manslaughter Assault. Contact us today for a free and confidental consultation. 

Call (210) 738-8383 today.


This article was last updated on Friday, January 20, 2017.

Click Here to Request Your Free Consultation
Request Your Free Consultation

* All fields are required.

In the Media
Defender of the Year Featured in Defender Magazine