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Driving while intoxicated and chemical testing

Summary of the topic

Chapter 49 of the Penal Code creates the offenses, and Chapter 724 of the Transportation Code governs how the evidence is obtained. Section 49.01 defines intoxicated in two alternative ways: not having the normal use of mental or physical faculties because of alcohol or another substance, or having an alcohol concentration of 0.08 or more. A driver under 0.08 can therefore still be intoxicated on the loss-of-faculties limb.

Section 49.04 makes it a Class B misdemeanor to be intoxicated while operating a motor vehicle in a public place, with a minimum term of confinement of 72 hours. An open container raises the minimum term to six days, and an analysis showing 0.15 or more makes the offense a Class A misdemeanor. Section 49.045 makes it a state jail felony when the vehicle carries a passenger younger than 15. Section 49.07 makes intoxication assault a third degree felony, section 49.08 makes intoxication manslaughter a second degree felony, and section 49.09 raises the grade for previous convictions and for injury to certain on-duty persons such as peace officers.

Under section 724.011 a person arrested for these offenses is deemed to have consented to the taking of a breath or blood specimen. Section 724.015 requires the officer to give a statutory warning, orally and in writing, before requesting a specimen. The warning covers the use of a refusal as evidence, a license suspension of not less than 180 days on refusal, and the right to a hearing on the suspension. Section 724.013 provides that a specimen may not be taken if the person refuses, except in the mandatory cases.

Section 724.012 lists those cases, such as a collision in which a person has died or suffered serious bodily injury, or an arrest with a child passenger. Even then, subsection (e) provides that the officer may not require a specimen unless the officer has a warrant or probable cause to believe that exigent circumstances exist. Article 18.01 of the Code of Criminal Procedure requires a sworn affidavit establishing probable cause for the warrant.

Sections 724.016 and 724.017 say who may take a breath or blood specimen, and Chapter 522 of the Transportation Code adds a lower threshold of 0.04 and disqualification rules for commercial drivers.

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