Houston Criminal Law Blog

EXPERIENCED. AGGRESSIVE. HOUSTON CRIMINAL DEFENSE LAW FIRM: The Law Office of Matthew D. Sharp

What’s the Difference Between Assault and Intoxication Assault?

Assault vs Intoxication Assault

Texas is well known for being tough on alcohol related crimes. If you drink and drive in Texas, you stand a good chance of being pulled over and charged with DWI. A conviction for DWI can leave you dealing with the legal repercussions for months or years.

An intoxicated driver can face upgraded charges if they injure someone as the result of their impaired driving or boating. Causing a serious injury to another person in Texas is a crime in itself but doing so while intoxicated is much more serious. Read on to find out the differences between assault and intoxication assault.

What Is Intoxication Assault?

Section 49.07 of the Texas Penal Code spells out the definition of intoxication assault. According to the law, a person is guilty of intoxication assault if they:

  • Cause serious bodily injury to another person as the result of operating a vehicle, aircraft, watercraft or amusement ride while intoxicated
  • Causes serious bodily injury to another person as the result of assembling an amusement ride while intoxicated

Under the law, serious bodily injury is defined as any injury which causes permanent disfigurement or which causes protracted impairment or loss of function of any bodily organ or member.

Consider the following examples. David is driving home from a long night at the local bar. He has five beers before driving home, giving him a blood alcohol concentration of .12, well over the legal limit. On the way home, David swerves and hits a pedestrian on the side of the road. As a result, the pedestrian has his left leg amputated. David can be charged with intoxication assault because he caused permanent disfigurement to another person as the result of driving while intoxicated.

Rebecca works at a carnival. She is instructed to help assemble the Ferris wheel but she has been drinking vodka all afternoon, giving her a BAC of .16. She makes several mistakes when assembling the ride, causing it to fail when it starts operating. A young woman falls from the ride, breaking her spine. Rebecca can also be charged with intoxication assault even if she sobered up by the time the accident happened.

Differences Between Assault and Intoxication Assault

According to Texas law, simple assault can occur when one person injures another person or makes another person fear that they will be seriously injured. For example, punching another person in the face may be considered assault. However, a person who issues credible threats and makes another person fear that they will be beaten up can also be charged with assault.

This is different from intoxication assault because Section 49.07 of the penal code states that intoxication assault involves the use of some sort of vehicle or amusement ride. Punching another person while drunk is not considered intoxication assault if a vehicle or amusement ride is not involved.

These two crimes are also prosecuted differently. The burden of proof may be slightly higher for proving assault when compared to proving intoxication assault in a court of law.

For example, a person charged with assault may argue that their actions were the result of self-defense. If Mark is arrested for punching Alan, Mark’s attorney could argue that Alan threatened Mark and that Mark was only defending himself.

This defense is not always acceptable in cases of intoxication assault. If Mark hits Alan with a car while intoxicated, it may be difficult to claim that Alan was threatening him. Also, intoxication assault is more likely to result in serious bodily injury because vehicles are involved. This means that it may be easier for the prosecution to convince a jury that a conviction is necessary because the assault was more dangerous than a simple fistfight.

Additionally, a person charged with intoxication assault cannot claim as a defense that their actions were accidental. This is because the law specifically states that intoxication assault occurs as the result of an accident or a mistake.

Intoxication Assault Penalties

In Texas, simple assault is considered a misdemeanor offense. This means that the punishments for this crime, while still very serious, are not as significant as felony penalties.

Intoxication assault, however, is a felony of the third degree. A conviction for this crime can result in:

  • Two to 10 years in Texas state prison
  • A fine of up to $10,000
  • Revocation of driving privileges
  • Additional fines and fees to be paid for license reinstatement and DPS surcharges

Intoxication assault charges can be upgraded to second degree felony status if the accident leads to the death of another person. Intoxication manslaughter is a second degree felony, punishable by up to 20 years in prison.

Intoxication Assault Defenses

When a person faces intoxication assault charges in court, their attorney may try one or more strategies to argue that they are innocent or that their charges should be reduced.

One of the best ways to defend against intoxication assault charges is to argue that the defendant was not actually intoxicated. In order for a person to be considered legally intoxicated in Texas, a breath or blood test must show that their blood alcohol concentration was .08 or higher. A defense attorney may argue that these blood or breath tests were performed inaccurately or that they were performed by improperly trained officers.

For example, if an attorney can show that the breath test used in an intoxication assault case was performed with a device that had been improperly calibrated, that evidence may be deemed inadmissible in court.

Also, an attorney can file a motion to suppress certain pieces of evidence, such as witness statements or testimonies. If such evidence is suppressed, it can’t be used in a prosecution and charges might be dropped as a result.

In some cases, an attorney may argue that the assault happened as the result of self-defense. If an attorney can show that the defendant was trying to flee from an attack or stop an attacker with their vehicle, the charges might be dropped or reduced to a less serious criminal offense.


the law office of matthew d sharp

Comments (no responses)

Comments are closed.