A DWI investigation can become a felony case when another person is seriously injured.
Texas calls this offense Intoxication Assault.
Under Texas Penal Code §49.07, the State may prosecute Intoxication Assault when a person, by accident or mistake, while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.
The phrase "by reason of that intoxication" is enormously important.
It is not enough that:
- a driver was intoxicated
- and
- someone was seriously injured.
The State must prove the required causal connection between the intoxication and the serious bodily injury.
At Taylor Defense Firm, that means examining both the intoxication evidence and the collision itself.
Was the accused actually intoxicated?
What caused the collision?
Who had the right of way?
What does the physical evidence show?
Was another driver involved in causing the crash?
Does the injury legally qualify as serious bodily injury?
And can the State prove that the injury occurred by reason of the accused's intoxication?
What Must the State Prove?
In a motor-vehicle Intoxication Assault prosecution, the State generally must prove that the accused:
- operated a motor vehicle in a public place;
- was intoxicated;
- and, by reason of that intoxication, caused serious bodily injury to another.
Each part matters.
A serious collision does not automatically establish intoxication.
Intoxication does not automatically establish causation.
And an injury does not automatically satisfy the statutory definition of serious bodily injury.
What Is "Serious Bodily Injury"?
Texas law distinguishes ordinary bodily injury from serious bodily injury.
Serious bodily injury generally means bodily injury that:
- creates a substantial risk of death;
- causes death;
- causes serious permanent disfigurement; or
- causes protracted loss or impairment of the function of a bodily member or organ.
In an Intoxication Assault prosecution, the nature and duration of the alleged injury can therefore be critical.
Not Every Injury Is Serious Bodily Injury
A person can suffer a genuine and painful injury without necessarily satisfying the statutory definition of serious bodily injury.
Relevant evidence may include:
- emergency-room records;
- diagnostic imaging;
- surgical records;
- physician testimony;
- photographs;
- rehabilitation records;
- follow-up treatment;
- duration of impairment; and
- evidence concerning permanent or protracted consequences.
The seriousness of the accident itself should not substitute for proof of the statutory injury element.
Intoxication Assault Is Generally a Third-Degree Felony
Intoxication Assault is ordinarily a third-degree felony.
The ordinary punishment range is:
- 2 to 10 years in prison; and
- a possible fine of up to $10,000.
But particular circumstances can elevate the offense further.
Certain Victims Can Increase the Offense Level
Texas law provides enhanced classifications for Intoxication Assault involving certain protected persons and circumstances.
Depending upon the statutory facts, an Intoxication Assault can be elevated above the ordinary third-degree felony classification.
For example, the offense can become a second-degree felony in certain cases involving serious bodily injury to:
- a firefighter;
- emergency medical personnel; or
- another individual specifically protected by the statute,
when the statutory requirements are satisfied.
A second-degree felony generally carries:
- 2 to 20 years in prison; and
- a possible fine of up to $10,000.
Because §49.09 contains specific enhancement provisions, the exact victim status and statutory subsection alleged in the indictment should be examined rather than assuming every Intoxication Assault carries the same punishment range.
Brain Injury Can Produce an Even More Serious Charge
Texas law also provides heightened punishment in certain Intoxication Assault cases involving a traumatic brain injury that results in a persistent vegetative state.
When the statutory requirements are satisfied, the offense can be elevated to a second-degree felony.
Medical records and expert testimony can therefore affect not only whether serious bodily injury exists, but also the classification of the offense.
The State Must Still Prove Intoxication
A catastrophic collision can create a powerful emotional reaction.
But the State still must prove intoxication.
The evidence may include:
- driving behavior before the collision;
- witness testimony;
- officer observations;
- field sobriety testing where circumstances permitted it;
- breath testing;
- blood testing;
- toxicology;
- prescription-drug evidence;
- admissions;
- body-camera video; and
- hospital evidence.
Serious injury does not lower the State's burden of proof.
Blood Evidence Is Common in Serious Collisions
Intoxication Assault investigations frequently involve blood evidence.
Depending upon the circumstances, blood may be obtained through:
- consent;
- a search warrant;
- legally authorized medical evidence; or
- another procedure permitted by law.
The defense may examine:
- How was the blood obtained?
- When was it drawn?
- Who collected it?
- How was it stored and transported?
- What laboratory tested it?
- What did the laboratory actually detect?
- And what does the result establish about the time of driving?
Prescription Drugs and THC Can Be Part of an Intoxication Assault Case
Intoxication Assault is not limited to alcohol.
The prosecution may allege intoxication caused by:
- prescription medication;
- marijuana or THC;
- controlled substances;
- illegal drugs;
- combinations of drugs;
- alcohol combined with medication; or
- other substances covered by Texas intoxication law.
A positive toxicology result should be evaluated for what it actually proves about intoxication at the time of operation.
Causation Is a Central Defense Issue
One of the most important questions in an Intoxication Assault case is:
What actually caused the injury-producing collision?
Consider a collision in which the accused has alcohol in his system but another vehicle:
- runs a red light;
- crosses the center line;
- fails to yield;
- suddenly enters the roadway; or
- causes the collision through some other independent act.
The existence of intoxication does not automatically answer the causation question.
The State must prove the causal connection required by the statute.
"He Was Drunk" Is Not a Crash Reconstruction
Once police obtain evidence suggesting intoxication, there can be a temptation to view every other fact through that conclusion.
But collision causation should be investigated independently.
Relevant evidence may include:
- roadway measurements;
- skid or tire marks;
- debris;
- vehicle damage;
- photographs;
- traffic signals;
- surveillance video;
- dash-camera footage;
- witness statements;
- event data recorder information;
- vehicle inspections;
- weather;
- lighting;
- roadway design; and
- crash reconstruction.
The physical evidence may support the State's theory.
Or it may show that the collision was more complicated than the initial report suggests.
Event Data Recorder Evidence Can Matter
Modern vehicles may contain electronic data capable of assisting a collision investigation.
Depending upon the vehicle and circumstances, available information may concern matters such as:
- speed;
- braking;
- throttle;
- restraint use; or
- other recorded vehicle information.
The availability and meaning of that information depend upon the particular vehicle and data collected.
It can sometimes provide objective evidence concerning the seconds surrounding a collision.
Surveillance and Traffic Cameras Should Be Located Quickly
Serious crashes may occur near:
- businesses;
- residences;
- intersections;
- government buildings;
- toll facilities; or
- other locations with cameras.
Video can disappear through routine overwriting.
Identifying potentially relevant recordings early can therefore be important.
Video may show:
- vehicle movement,
- traffic-light sequence,
- lane position,
- speed or relative speed,
- pedestrian movement,
- or
- the collision itself.
Witness Statements Should Be Compared
Serious crashes can produce multiple witnesses.
Their accounts may differ.
One witness may see the vehicles before impact.
Another may hear the collision but not see it.
Another may arrive afterward.
A useful investigation separates:
- what the witness actually observed
- from
- what the witness later assumed happened.
The Injured Person's Conduct Can Be Relevant to Causation
The injured person's conduct does not excuse intoxicated driving.
But it can be relevant to determining what caused the injury.
Depending upon the facts, issues may include:
- unsafe driving;
- failure to yield;
- traffic violations;
- sudden movement into the roadway;
- seatbelt use;
- motorcycle protective equipment;
- pedestrian conduct; or
- other circumstances affecting causation or injury.
The legal significance depends upon the evidence and the causation question actually presented.
Medical Causation Can Also Be Disputed
Collision causation and medical causation are related but distinct.
The defense may need to determine:
- What injury was caused by this collision?
- Did the person have a preexisting condition?
- Was there an intervening medical event?
- What impairment actually resulted from the collision?
- How long did it last?
Medical records may be important in answering whether the statutory serious-bodily-injury requirement is satisfied.
Multiple Injured People Can Mean Multiple Counts
A single collision can injure more than one person.
That may result in multiple Intoxication Assault allegations.
Each count should be analyzed separately:
- Who is the alleged victim?
- What injury did that person sustain?
- Does that injury constitute serious bodily injury?
- What evidence establishes causation as to that person?
One accident does not eliminate the need to examine the proof supporting each charged count.
What If Someone Dies?
When an intoxication-related collision causes death rather than serious bodily injury, the potential charge may become Intoxication Manslaughter.
That is a separate felony offense with its own elements and punishment provisions.
A collision involving multiple people can potentially produce both Intoxication Assault and Intoxication Manslaughter counts if some individuals are seriously injured and another dies.
Intoxication Assault Is Different From Aggravated Assault
Both offenses can involve serious bodily injury.
But they are not interchangeable.
Intoxication Assault is an intoxication offense with its own statutory causation requirements.
Aggravated Assault is governed by different statutes and mental-state requirements.
The charging instrument should identify exactly what theory the State is pursuing.
Prior Convictions Can Affect Punishment
A defendant's criminal history can create additional punishment issues.
Prior qualifying felony convictions may potentially increase the punishment range under Texas repeat- or habitual-offender statutes.
That requires a separate analysis of:
- the prior conviction;
- offense date;
- conviction history;
- finality;
- sequence where required;
- identity; and
- the enhancement statute actually invoked.
The punishment range should be calculated from the indictment and legally usable criminal history rather than assumed from the name of the offense alone.
Probation and Sentencing Require Separate Analysis
Clients understandably ask:
"Can I get probation?"
The answer can depend upon:
- criminal history;
- manner of sentencing;
- statutory restrictions;
- findings made in the case;
- victim circumstances;
- enhancement allegations; and
- other legally relevant facts.
Even when community supervision is legally available, an Intoxication Assault disposition may carry substantial conditions and collateral consequences.
Build the Case From Two Directions
At Taylor Defense Firm, we may analyze an Intoxication Assault case through two parallel timelines:
INTOXICATION
activities before driving → alcohol/drug consumption → driving → police observations → specimen collection → toxicology → interpretation.
COLLISION AND INJURY
roadway conditions → vehicle movements → impact → physical evidence → witness accounts → reconstruction → medical treatment → injury → causation.
Then the two timelines are brought together.
We ask:
- Can the State prove intoxication?
- What caused the collision?
- Does the physical evidence support the police reconstruction?
- Did another driver contribute to or cause the collision?
- What does the vehicle data show?
- What do independent witnesses actually know?
- Does the alleged injury meet the legal definition of serious bodily injury?
- Can the State prove the injury occurred by reason of the accused's intoxication?
- Is an enhanced form of Intoxication Assault actually alleged and supported?
- And what punishment range truly applies?
Intoxication Assault is much more than a DWI with a bad outcome.
The State must prove intoxication, serious bodily injury, and the required causal connection between them. Each deserves its own investigation.