What is Intoxication Assault?

Everyone is aware that drunk-driving laws are in effect in Texas and every other state in the union.  Some states call their law Driving Under the Influence (DUI).  In Texas, the legislature has named our law Driving While Intoxicated (DWI). Regardless of what the law is called, the crime is basically the same: if you get behind the wheel after having lost the normal use of your mental or physical faculties as a result of the introduction of alcohol, drugs, or a combination thereof into your body, you are likely going to jail.

In Texas, a first offense DWI is a misdemeanor which can land you up to six months in the county jail, and a fine up to $2000. You will also lose your driver’s license, which will cost you time, money, and considerable effort to have reinstated. And with subsequent offenses, the penalty range will go up substantially from that first-offense starting point.

Intoxication Assult

What a lot of people do not realize, however, is that there are a half-dozen or more spinoff offenses emanating from the basic DWI scenario. Each one of these offenses can make your legal experience even more unpleasant than what it would otherwise be with just a standard DWI conviction.   

For instance, what if you were behind the wheel while legally intoxicated, and you have a wreck which causes serious bodily injury to someone in another vehicle, or even to a passenger in your own vehicle?  If this happens, you will likely be charged not with simple DWI, but with Intoxication Assault.

Intoxication Assault is a crime specially enacted by the Texas legislature to address incidents where a person has an accident while driving while intoxicated, and by reason of that intoxication causes serious bodily injury to another individual.  Unlike a first-offense misdemeanor DWI, this offense is a felony for which you could be sentenced to the state penitentiary.

“Serious bodily injury,” as defined by the statute creating Intoxication Assault, is an injury which creates “a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”  This definition is a mouthful, and sounds like an extremely high standard. But even a broken nose may cause “permanent disfigurement,” and a nose is not hard at all to break upon impact. So the proof needed to establish the element of serious bodily injury is generally not difficult for a prosecutor to find when reviewing a drunk-driving related accident where some injury is involved.

How Does The Prosecution Prove Driving While Intoxicated?

As mentioned above, in order to prove a person guilty of Intoxication Assault, the State must first show that the defendant was guilty of DWI.  If the prosecutor cannot prove the defendant was guilty of DWI, it cannot prove Intoxication Assault even if there was a serious accident where injuries occurred.

A finding of DWI is complete if the prosecutor can show that a person was intoxicated while operating a motor vehicle in a public place.  In this context, “intoxication” does not necessarily mean “drunk” in the normal sense of the word.  Intoxication, as defined by the Texas Penal Code, means:

(a)  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

(b)  having an alcohol concentration of 0.08 or more.

This legal definition of intoxication is a fairly low standard.  Therefore, a person charged with DWI might feel as though they are perfectly “sober” by their subjective understanding of the term, yet be quite intoxicated according to the legal definition.  

The Prosecutor Must Also Prove The Element Of Causation!

The prosecutor’s burden to establish the crime of Intoxication Assault is not over simply by showing that the driver was guilty of DWI at the time of the accident which causes injury.  The State must also prove that the defendant’s intoxication was a necessary causal factor in the resulting injuries involved.  In other words, the State must show that but for the intoxication of the defendant at the time of the vehicular accident, the serious bodily injury incurred by the innocent party would have not occurred.  

Penalty Range

Intoxication Assault is usually a third degree felony which is subject to a penalty range of not less than two, nor more than 10 years’ incarceration in the state penitentiary, and a fine not to exceed $10,000. There are various scenarios, however, where this offense can be enhanced to a higher level. And just as with a standard misdemeanor DWI, you will lose your driver’s license, which will be a considerable disruption to your life even if you somehow manage to escape a penitentiary sentence.  

Defenses to Intoxication Assult

A skilled criminal defense attorney has many strategies to defend you against the charge of Intoxication Assault.

Most of those strategies start with attacking the prosecution’s underlying case of driving while intoxicated. If your attorney can successfully defend the allegation that you were legally intoxicated at the time of the accident, then the prosecution’s case for higher offense of Intoxication Assault will fail. Your attorney should know the best approach to use based upon the specific facts of your case.

The offense of DWI is a complicated crime unto itself, and there are many tactics available to defend against the charge. For instance, if the State is relying on breath test results to prove intoxication, oftentimes the defense will attack the science of the intoxilyzer instrument itself, which will involve intense cross-examination of the prosecution’s expert witness with the objective of discrediting the science of infrared spectrometry breath alcohol instruments. On the other hand, if a blood test is involved, your attorney might focus on the collection and storage of the blood sample, as well as the science involved in analyzing the vile of blood taken at the time of your arrest.

Perhaps the second most common strategy is to contest whether your level of intoxication (if indeed you were legally intoxicated), was actually the cause of the accident. Your attorney may be able to establish that the driver of the other vehicle was actually at fault, and that the accident would have happened regardless of your intoxication. For instance, if the other driver ran a stop sign and crashed into the side of your vehicle as you were driving carefully down the roadway, then chances are good that a jury would conclude that the alcohol you had consumed was not a factor in the collision.

Another key element that is subject to attack is whether the resulting injuries of the innocent party fall into the definition of “serious bodily injury.” In order to challenge this element effectively, it may be necessary to hire an expert medical witness to examine the medical records and testify on your behalf. Oftentimes, however, the injuries may be so severe that any attacks on this element would backfire if presented to a jury, which means that your attorney may decide that the best strategy is to focus on other elements of the State’s burden of proof.

The bottom line is that Intoxication Assault is a complicated offense for the State to prove, and for your attorney to defend. Due to the amount of science involved, you should expect your attorney to have specialized expertise in the defense DWI-type cases.

Not every lawyer, not even every experienced criminal lawyer, will give you effective representation in this type of case. You need, and should demand, that your attorney be competent to represent you with a charge of Intoxication Assault.

How can I get more information about this topic?

If you are charged with Intoxicated Assault, DWI, or related crime you should contact a competent defense attorney skilled in the practice of criminal law immediately in order to start work on your defense.  The Bigham Law Firm has the attorneys with the experience, and resources to properly represent you in these difficult types of cases.  

If you would like more information about how to protect yourself in any criminal case, please call the Bigham Law Firm at (979) 743-4153 for a free consultation. 

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Ken Bigham Jr. has nearly three decades of experience navigating the law to protect his clients from unfair treatment by insurance companies, the government and corporations. He believes that Bigham Law’s purpose is to provide outstanding value to its clients and compassionate service to its community. 


This firm gave me my life back. Before Ken and his team I almost gave up hope and caved. He gave me back a chance to finish my schooling, move past what was done to me, and handed back the tools I needed to be a man.

Here I am now a father to a beautiful little girl and building a small business. I can say if I didn’t meet Ken, the story would have been not quite the same. Nothing but love and appreciation from me and my family.

J.S. 2019

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