Not all DWIs are the same.  There are many specific DWI charges in Texas depending on the circumstances of your case.  This article will focus on the penalties and issues associated with DWIs that result in serious bodily injury. You can imagine the scenario; you’re out late with your friends. You’ve had a few drinks. You drove that night but its been over an hour since your last drink and you feel fine; you can see straight; you feel like your okay to drive. You get into your car, turn it on, and start heading home. Unfortunately, you’re more inebriated than you thought. The alcohol hit you harder than you initially thought and it's hard trying to remain focused. But it isn’t enough, you over-correct on a perceived obstacle, and you get into an accident. You’re hurt, your friend you were taking home is also hurt.

When the police and ambulance arrive, all you want is for your friend to be okay, but at this point, the police are already building their case. Since someone was injured in the accident and you registered an above 0.08 BAC limit, they are planning on charging you with a more severe offense Intoxication Assault. This article will review the following issues: (1) the individual facts the prosecutor must prove to establish a charge of intoxication assault; (2) the arguments you might raise in your defense; (3) possible criminal penalties; (4) other punishments or treatment that are available; and (5) how an intoxication assault charge may impact your prospects.

The Elements of Intoxication Assault

The prosecutor must prove each “element” of the time. The “elements” are the specific facts that result in a criminal act. Establishing each of these acts enables the jury to find a person guilty of said crime. For example, intoxication assault requires the prosecutor to establish (1) you were operating a vehicle (more on that later); (2) in a public place; (3) while intoxicated, and (4) by reason of that intoxication caused serious bodily harm to another person. To prove to the jury that you’re guilty of intoxication assault, the prosecutor needs to establish each of these elements. Therefore, you can build an effective defense by either undermining one of these elements or creating a reasonable explanation as to why the elements should not or could not apply.


“Vehicle” includes automobiles, planes, boats, and amusement park rides – yes amusement park rides. There is probably an interesting story about why the Texas legislature felt compelled to add amusement park rides to a crime that typically covers planes, boats, and cars.

            Serious Bodily Harm

For purposes of this crime, “serious bodily harm” means an injury that creates a significant risk of permanent impairment/disfigurement, serious impairment of bodily function or use, or death. Basically, serious bodily harm refers to permanent disfigurement, death, or significant damage to the use of your body or operation of your organs.

            Public Place

A public place refers to public roads, parks, and other places that are accessible for public use. Remember, a public place includes both public and private property – it isn’t limited to publicly-owned properties. So, if you are operating a car on a track that is available to the public – you are subject to this law. But, if you are racing a truck or operating a boat in your private land or waters, in an area that is not ordinarily open to the public (so, your personal track or waters), then you are not subject in a public place.


Intoxication is substantiated in one of two ways:

  • Your blood alcohol content (“BAC”) is 0.08 percent or higher; or
  • You no longer have the physical and mental faculties you would otherwise usually have due to the use or ingestion of alcohol, drugs (including prescription and illegal drugs); or some other substance that alters your ability to function.

Possible Enhancements to Intoxication Assault

Enhancements refer to an increase in the severity of punishment and crime due to the presence of special circumstances. Here, an intoxication assault can be enhanced in three situations.

First, the charge is increased to a felony, second degree if you cause serious bodily injury to an emergency medical services person or a firefighter while they are discharging their official duties. For example, hitting a firetruck while it is responding to a call.

Second, the charge is increased to a felony in the first degree if you cause serious bodily injury to a police officer or judge while they are doing their official duties. For example, you hit a police cruiser while it is out on patrol and injure the officer.

Finally, the charge is increased to a felony in the second degree if you cause such a serious bodily injury that it leaves the victim with a traumatic brain injury which causes the victim to remain in an ongoing vegetative state.

The Interrelation between DWI and Intoxication Assault

At first, intoxication assault sounds like a DWI with someone who was seriously injured. However, a DWI and intoxication assault are two separate charges; and you can be charged with both. The police can charge with a DWI under Tx. Pen. Code § 49.04 and an intoxication assault under Tx. Pen. Code § 49.07. The elements of a DWI are the same as intoxication assault minus the serious bodily injury. Therefore, if you are convicted of intoxication assault – you can also be convicted of a DWI. Accordingly, most prosecutors will seek convictions on both crimes because proving intoxication assault also proves DWI. If you are convicted of both crimes, you also face separate penalties for each crime.

Possible Defenses You Can Raise to Intoxication Assault

            You weren’t operating the vehicle

Recall, the prosecutor must prove that you were operating a vehicle at the time of the accident. If you have ever been in an accident, you know that they are messy, confusing, and complicated to unpack. You can probably imagine that an accident as a result of a DWI is even more of a hectic mess. When the police show up at the accident site, you and the other individuals involved may be walking around, trying to help one another – it is difficult for the police actually to determine who was operating the vehicle. The one caveat to this defense is that someone must have been operating the vehicle therefore if your defense is that it wasn’t you, it must have been someone else in the vehicle with you.

            A breathalyzer administered while alcohol was still being absorbed

The intoxication, as discussed above, must have been at the time of the accident – it can’t be a few hours after – it must be at the time of the accident. It takes time for alcohol to absorb into your bloodstream. Therefore, in some cases, it is possible for individuals to have a few drinks in a short period of time and drive home soon thereafter and get home before the alcohol has been absorbed into the blood.

However, if that individual is involved in an accident, then the entire process is delayed and while you are being detained and tested; your BAC level increases above the legal limit. A defense attorney can argue that at the time of the accident, you were not intoxicated but rather the alcohol was absorbed into your blood after the accident occurred. Your attorney can establish this by either cross-examining the government’s witness and getting her to admit that the time from consuming the alcohol to the time of the accident was insufficient for the alcohol to get absorbed or by putting forth your own expert to testify as to the same.

            The police did not have probable cause to stop you

There are two standards that every police officer must obey before (1) detaining and questioning and (2) arresting someone. First, before detaining and questioning an individual, the police officer must have reasonable suspicion that a crime has occurred and that evidence of the crime is on or near the person’s body or that the individual should be questioned. Reasonable suspicion must be supported by “articulable facts” which means the officer must identify specific facts (i.e., mannerisms, smell, appearance, etc.) to support her reasonable suspicion.

Before an officer may arrest and charge an individual with a crime; she must have probable cause to believe that the individual committed a crime. Probable cause is like reasonable suspicion but even more “articulable facts.”

If the officer detained you without reasonable suspicion or arrested you without probable cause; then the arrest is unconstitutional and any evidence gathered as a result of that arrest is not admissible at your trial. If your defense attorney can prove that the officer lacked probable cause and gets the evidence excluded; then the case against you is dropped because the prosecutor would be unable to make his case.

Your defense attorney can establish the officer didn’t have probable cause or reasonable suspicion because police officers are trained to rely on similar sets of circumstances to support probable cause after the fact. If the officer’s recitation of the events is unsupported by other witness testimony and evidence; then the prosecutor can prove the police officer lacked probable cause.

            Other situations to exclude evidence: field sobriety tests and breathalyzers

Attacking probable cause isn’t the only way to exclude evidence. Some of the most pivotal evidence is developed from the field sobriety tests and breathalyzers both of which are subject to error and register false positives.

The field sobriety test is composed of three different tests: (1) the walk and turn; (2) the horizontal gaze; and (3) the one-leg stand. These tests, when administered correctly, can be a good indicator that an individual is intoxicated. The problem is that the tests must be administered correctly. These tests are difficult to administer, especially in the field. The officer must pay attention to you; ensure that you aren’t restricted by your clothing or generally have bad balance. The officer should be focused on ensuring that her administration of the test doesn’t register a false positive.

Similarly, the breathalyzer seems like it should be a simple test to administer, but it is also subject to false positives. The test itself is simple, you exhale into the device, and it measures the alcohol in your breath which estimates your BAC. However, during the administration of the test, the officer must observe you for at least 15 minutes before having you blow because if you burp or have acid reflux, the naturally occurring alcohol in your body can register as a false positive on the breathalyzer. In reality, the officer probably wasn’t observing and was more likely focused on paperwork or getting the breathalyzer ready for administration. Your defense attorney can pick apart how the officer administered the test; whether she observed you continuously for the minimum 15 minutes; and use that to undermine the results of the test.

            Miranda Rights

Miranda Rights is shorthand for a series of rights the officer must read off to you the moment you are arrested: (1) your right to remain silent; (2) your right to the assistance of counsel; (3) right to refuse to provide information to the police; (4) you have the right to stop questioning at any time. The officer must read you your Miranda rights the moment you are detained. If she does not, then the arrest and evidence gathered therefrom should be excluded. Your defense attorney will go over the details of your arrest, it may sound tedious or unnecessary, but every detail counts for your lawyer because the police must follow strict procedures to ensure they don’t abuse anyone’s rights.

            Attacking the elements of the crime

As discussed above, the prosecutor must provide proof for each element of the crime in order for you to be convicted. If the prosecutor doesn’t make then the jury cannot find you guilty. But, you may ask, what if the jury convicts anyway? Maybe they have a lower threshold for guilt. Right, that is possible. However, in that event, your attorney can also move the judge disregard the jury’s verdict because the prosecutor didn’t meet her minimum burden of proof – i.e., the burden that she establish each element of the crime.

First, you can argue that you weren’t intoxicated at the time of the accident. If you are pulled over and you refuse the breathalyzer, the officer must take you to a hospital to administer a chemical test; that could take hours, and by then you might have a below 0.08 percent BAC which means the prosecutor can only make her case based on the officer’s testimony that you were intoxicated. As discussed above, your defense attorney can cross-examine the police officer to ascertain how she determined that you were intoxicated and attack the reliability of the officer’s testimony.

Second, you could also argue that you weren’t the cause of the accident. Recall, the elements require that you cause the accident due to your intoxication. If you were the victim in the crash, if someone else was the cause, then you cannot be charged with intoxication assault. Your defense attorney can conduct his own investigation into the causes of the crash to determine if there are third-parties against whom the police should levy charges.

What happens if you refuse the breathalyzer?

Texas, like many states, has adopted the “implied consent rule.” The implied consent rule holds that by getting a license, you impliedly consent to submit to an officer’s request that you take a breathalyzer test when the officer suspects you have been drinking and driving. If you refuse to take the breathalyzer, that will result in an automatic suspension of your license of 90 days and up to two years.

However, the revocation isn’t immediate; you have 15 days to request an administrative hearing regarding your license suspension. You are allowed to hire an attorney to assist you at the hearing and represent you. If you fail to request a hearing, the license suspension is effective 40-days after your initial refusal.

This is an administrative penalty that is separate from any pending criminal charge you might have related to your interaction with the police. You can go to the hearing, win and keep your license but that doesn’t stop the criminal charges (but it is a good sign for your defense to the criminal case).

Possible Penalties You Could Face

If you are convicted of a standard intoxication assault, you are convicted of a felony in the third degree. Third-degree felonies result in a prison sentence of between two and ten years and a fine of up to $10,000. If your charge were enhanced to a second-degree felony then, you would face a prison sentence of two to twenty years and a fine of up to $10,000. Finally, if your offense was enhanced to a first-degree felony, you face a prison sentence of five to ninety-nine years (or life) and a $10,000 fine.

            Difference between jail and prison

Misdemeanor offenders are sent to jail. Felony offenders are sent to prison. Jail is usually a lower security facility, you are given more freedom, and it is designed for short-term stints; usually no more than a year. Conversely, prison is a higher-security facility, minimum freedom of movement, and designed for long-term sentences, up to and including life in prison. Jails are kept closer to cities, or even inside cities whereas prisons are remote and kept in rural areas.

Alternative Penalties You Could Face

            Alcohol Education Programs

The alcohol education program is designed for first-time offenders. If you are placed into custody, you may have to complete one of these programs as a condition for early release or as part of your probation agreement. These programs are administered by the Texas Department of State Health Services and take 12 hours to complete. The program educates you on the dangers of alcohol and drugs, and how it affects your ability to operate a vehicle safely. It also focuses on the effects of the accidents on the victims’ families.

            Intervention Program

The intervention program is like the education program but for repeat offenders. It is 32 hours long and focuses on encouraging offenders to enter rehabilitation and treatment programs to discourage behavior in the future. This program, unlike education, focuses on positive-thinking, self-esteem, and other underlying psychological factors that could be the root cause of repeated dangerous behavior.

            AA Meetings

The judge may also order you to attend AA meetings for a certain period of time. AA meetings are group therapy sessions wherein attendees share their experiences and struggle to help control their addiction to alcohol.

            Ignition Interlock Devices

An ignition interlock device is a permanent lock placed on the driver’s wheel of your car which only opens after you blow into it and your breath shows you haven’t been drinking. If you are required to install an ignition interlock device, you will likely have to pay for the device which could cost several thousand dollars.

            SR-22 Form: Insurance

Finally, you will have to send in a form SR-22 which proves that you have car insurance that complies with the state minimum standards. The SR-22 must be kept on your file for at least the two years following your conviction. If the form lapses (so, if you change insurance), the government will revoke your vehicle registration.

Harm to Your Prospects

In addition to the fines, jail time, administrative costs, and the burden of dealing with the alternative punishments; you could also face professional issues. If you have a professional license (i.e., medicine, law, etc.), it could be revoked or suspended pending a separate investigation by the licensing body.

If you are a commercial driver, you lose the right to operate a commercial vehicle for the one year following the conviction or guilty plea. Furthermore, your commercial license is also suspended if you refuse to submit to the breathalyzer or chemical test.

Finding a Criminal Defense Lawyer Near Me

Do you need the assistance defending against an intoxication assault charge, a different DWI-based offense, or any other criminal matter; then you should call Andrew Deegan DWI Attorney at Law at 817-470-2128. Andrew Deegan serves clients throughout the Fort Worth, Texas area and the surrounding suburbs. If you need the help of a criminal defense attorney, do not hesitate, and call Andrew Deegan DWI Attorney at Law today!