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Penal Code - CHAPTER 49

CHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES

49.01. Definitions

     In this chapter:

     (1) "Alcohol concentration" means the number of grams of alcohol per:

     (A) 210 liters of breath;

     (B) 100 milliliters of blood; or

     (C) 67 milliliters of urine.

     (2) "Intoxicated" 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.

     (3) "Motor vehicle" has the meaning assigned by Section 32.34(a).

     (4) "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.

     (5) "Amusement ride" has the meaning assigned by Section 2, Article 21.60, Insurance Code.

     (6) "Mobile amusement ride" has the meaning assigned by Section 2, Article 21.60, Insurance Code.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

Amended by Acts 1999, 76th Leg., ch. 234, 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1364, 8, eff. Jan. 1, 2000.

49.02. Public Intoxication

     (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

     (b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.

     (c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.

     (d) An offense under this section is not a lesser included offense under Section 49.04.

     (e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

Amended by Acts 1997, 75th Leg., ch. 1013, 12, eff. Sept. 1, 1997.

49.03. Consumption or Possession of Alcoholic Beverage in Motor Vehicle

     (a) A person commits an offense if the person consumes an alcoholic beverage while operating a motor vehicle in a public place and is observed doing so by a peace officer.

     (b) An offense under this section is a Class C misdemeanor.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

49.04. Driving While Intoxicated

     (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

     (b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

     (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

Amended by Acts 1995, 74th Leg., ch. 76, 14.55, eff. Sept. 1, 1995.

49.05. Flying While Intoxicated

     (a) A person commits an offense if the person is intoxicated while operating an aircraft.

     (b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

49.06. Boating While Intoxicated

     (a) A person commits an offense if the person is intoxicated while operating a watercraft.

     (b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

49.065. Assembling or Operating an Amusement Ride While Intoxicated

     (a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.

     (b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.

     (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.

Added by Acts 1999, 76th Leg., ch. 1364, 9, eff. Jan. 1, 2000.

49.07. Intoxication Assault

     (a) A person commits an offense if the person, by accident or mistake:

     (1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or

     (2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.

     (b) In this section, "serious bodily injury" means injury that 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.

     (c) An offense under this section is a felony of the third degree.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

Amended by Acts 1999, 76th Leg., ch. 1364, 10, eff. Jan. 1, 2000.

49.08. Intoxication Manslaughter

     (a) A person commits an offense if the person:

     (1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and

     (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

     (b) An offense under this section is a felony of the second degree.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

Amended by Acts 1999, 76th Leg., ch. 1364, 11, eff. Jan. 1, 2000.

49.09. Enhanced Offenses and Penalties

     (a) If it is shown on the trial of an offense under Section 49.04, 49.05, 49.06, or 49.065 that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated, the offense is a Class A misdemeanor, with a minimum term of confinement of 30 days.

     (b) If it is shown on the trial of an offense under Section 49.04, 49.05, 49.06, or 49.065 that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated, the offense is a felony of the third degree.

     (c) For the purposes of this section:

     (1) "Offense relating to the operating of a motor vehicle while intoxicated" means:

     (A) an offense under Section 49.04;

     (B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;

     (C) an offense under Article 6701l1, Revised Statutes, as that law existed before September 1, 1994;

     (D) an offense under Article 6701l2, Revised Statutes, as that law existed before January 1, 1984;

     (E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or

     (F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.

     (2) "Offense of operating an aircraft while intoxicated" means:

     (A) an offense under Section 49.05;

     (B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;

     (C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;

     (D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or

     (E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.

     (3) "Offense of operating a watercraft while intoxicated" means:

     (A) an offense under Section 49.06;

     (B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;

     (C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;

     (D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or

     (E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.

     (4) "Offense of operating or assembling an amusement ride while intoxicated" means:

     (A) an offense under Section 49.065;

     (B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or

     (C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.

     (d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.

     (e) A conviction may not be used for purposes of enhancement under this section if:

     (1) the conviction was a final conviction under Subsection (d) and was for an offense committed more than 10 years before the offense for which the person is being tried was committed; and

     (2) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated committed within 10 years before the date on which the offense for which the person is being tried was committed.

     (f) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

Amended by Acts 1995, 74th Leg., ch. 76, 14.56, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, 21, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1364, 12, 13, eff. Jan. 1, 2000.

49.10. No Defense

     In a prosecution under Section 49.03, 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.

Added by Acts 1993, 73rd Leg., ch. 900, 1.01, eff. Sept. 1, 1994.

Amended by Acts 1999, 76th Leg., ch. 1364, 14, eff. Jan. 1, 2000.

49.11. Proof of Mental State Unnecessary

     Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

Added by Acts 1995, 74th Leg., ch. 318, 22, eff. Sept. 1, 1995.

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