. 

The Attorney General of Texas 

August 18, 1983 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 76711. 2546 

5121475.2501 

Telex 9ux374.1367 

Telem~ier 5121475.0266 

1607 Main St.. Suite 1400 

Dallas. TX. 75201.4709 

2141742.8944 

4624 Alberta Ave.. Suite 160 

EI Paso. TX. 799052793 

!315/533-3464 

/h 

,220 Dallas Ave.. Sulk 202 

Houston. TX. 77002.6966 

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806 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

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McAllen. TX. 76501-1685 

5121662-4547 

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San Anlonio, TX. 78205-2797 

5121225.4191 

An Equal OpportUnitYl 

Affirmat~e Action Employer 

Honorable Bob Glasgow 

Chairman 

Subcommittee on Criminal Matters 

Texas State Senate 

P. 0. Box 12068, Capitol Station 

Austin, Texas 78711 

Opinion No. JM-68 

Re: Constitutionality of 

Senate Bill No. 1 relating to 

per se definition of lntoxication 

Dear Senator Glasgow: 

You have inquired about the constitutionality of the so-called 

per se intoxication rule contained in Senate Bill No. 1, the driving 

while intoxicated legislation recently enacted by the Sixty-eighth 

Legislature. Sections 3 and 4 of that act, amending, respectively, 

articles 67011-l and 67011-5. V.T.C.S.. 

“intoxicated”-to include T’ 

contain provisions defining 

having an alcohol concentration of 0.10 

percent or more.” We find that these provisions. which replace a 

presumption of intoxication derived from a finding of 0.10 alcohol 

concentration with a per se definition based on such a determination, 

are not constitutionally objectionable. 

You have directed our attention to People v. Alfaro, 192 Cal. 

Rptr. 178, 182 (Cal. Ct. App. 1983), which held a comparable 

California statute to be unconstitutional, declaring it to be “fatally 

vague in its notice provisions, and hence unenforceable.” However, in 

Burg v. Municipal Court, 192 Cal. Rptr. 531 (Cal. Ct. App. 1983). a 

coequal California judicial panel found that the same law “is not 

vague and is therefore constitutional. valid, and enforceable.” Both 

California courts agreed that the applicable standard is the one 

stated in Connally v. General Construction Company, 269 U.S. 385, 391 

(1926): 

That the terms of a penal statute creating a 

new offense must be sufficiently explicit to 

inform those who are subject to it what conduct on 

their part will render them liable to its 

penalties is a well-recognized requirement, 

consonant alike with ordinary notations of fair 

play and the settled rules of law. And a statute 

which either forbids or requires the doing of an 

act in terms so vague that men of COIMClOTl 

intelligence must necessarily guess at its meaning 

p. 289 
. 

Honorable Bob Glasgow - Page 2 (JM-68) 

and differ as to its application, violates the 

first essential of due process of law. 

The Alfaro court contended that the California per se 

intoxication statute 

gives notice only that a particular percentage of 

alcohol in the blood of a driver is illegal, 

without further explication, notwithstanding that 

the measured concentration of alcohol in the blood 

at any given time is plainly not a matter of 

common understanding, as demonstrared by the fact 

that test results of clinically obtained specimens 

must be interpreted at trial by an expert witness. 

Alfaro, supra, at 181. In its denial of rehearing, No. A019583 (Cal. 

Ct. App. - July 1, 1983) (not yet reported). the court concluded that 

Vehicle Code section 23152, subdivision (b) [the 

California intoxication statute], is constitutionally defective because it fails to provide 

citizen-motorists with reasonable means of 

ascertaining and avoiding the conduct proscribed 

by the statute. 

On the other hand, in Burg, supra, at 533, the court held that the 

statute in question “conveys to the drinking driver a sufficiently 

definite warning of what conduct is proscribed.” As the dissent in* 

Alfaro said: 

Vehicle Code section 23152, subdivision (b), 

manifestly warns the drinking driver that he must 

discontinue, or at least temper, his drinking 

after his initial imbibition. lest he reach the 

forbidden blood alcohol driving level, and face 

arrest and prosecution. Such a warning is 

sufficient by any constitutional standard known to 

me. 

Alfaro supra, at 183 (Elkington. J., dissenting). Hence, the central 

issue you raise is clearly drawn in the contrary positions taken by 

these California courts. Before we further examine the 

constitutionality of the new Texas definition of intoxication, we will 

describe the status of the existing presumption of intoxication based 

on a test finding of .lO percent alcohol concentration in a driving 

while intoxicated defendant. 

It is well established in Texas 

p. 290 
Honorable Bob Glasgow - Page 3 (JM-68) 

that the offense of “driving an automobile upon a 

public highway while intoxicated” consists of two 

elements; intoxication and driving upon a highway 

in such condition. Snider v. State, 165 S.W.2d 

904 (Tex. Cr. App. 1942). A criminal or unlawful 

intent is not an essential element of the offense. 

Joiner v. State, 161 Tex. Cr. App. 526, 279 S.W.2d 

333 (1955). 

FX Parte Ross, 522 S.W.2d 214, 217-218 (Tex. Cr. App. 1975). See also 

Reed v. State, 624 S.W.2d 708 (Tex. App. - Houston 114th Dist.] 1981, 

no pet). Further, the Texas Court of Criminal Appeals has held that 

[i]t is common knowledge that intoxication 

temporarily destroys faculties essential to safe 

driving, Schiller v. Rice, 151 Tex. 116, 246 

S.W.2d 607 (1952). and we cannot in good 

conscience speculate that the Legislature failed 

to recognize that which human experience has 

shown. Examination of the definitions of 

“intoxication” contained in the new Penal~ Code 

shows that the Legislature recognized that 

intoxication impairs mental faculties. 

Ross, supra, at 218-219. Moreover, with regard to the existing 

presumption of intoxication, it is settled that 

[s]uch a decision is legislative in nature and is 

foreclosed by the Legislature’s judgment as 

reflected in article 67011-5. 

Slagle v. State, 570 S.W.2d 916, 919 (Tex. Grim. App. 1978). “Whether 

a particular blood alcohol level should carry the weight of a 

presumption Is a matter for the Legislature.” Turpin v. State, 606 

S.W.2d 907, 912 (Tex. Grim. App. 1980). Likewise, the Texas Court of 

Criminal Appeals has clearly stated the impact of such a presumption 

by noting “that the jury may accept or reject the presumption of fact 

even in the face of no contrary evidence.” Madrid v. State, 595 

S.W.2d 106, 110 (Tex. Grim. App. - 1979). Specifically in the context 

of a driving while Intoxicated prosecution, that court has noted: 

A statutory presumption permits an inference to be 

drawn from proof of certain facts. In this 

instance the statute permits the jury to infer 

that a person is intoxicated if it is proved that 

there was 0.10 percent alcohol in his blood when 

he drove a motor vehicle on a public highway. The 

state is not relieved of the burden of proving 

each element of the offense beyond a reasonable 

p. 291 
Honorable Bob Glasgow - Page 4 (~~-68) 

? 

doubt. In order to take advantage of the 

presumption the state must prove each fact giving 

rise to the presumption beyond a reasonable doubt. 

Easdon v. State. 552 S.W.2d 153, 155 (Tex. Grim. App. 1977). 

Your inquiry raises the issue of whether the conversion from a 

presumption of intoxication derived from .lO percent alcohol 

concentration to a per se definition of intoxication based on such a 

finding affects the validity of the regulatory scheme. In describing 

a virtually identical statutory change, one court has recently 

written: 

Under the prior DWI statute . . . the amount of 

alcohol in a person’s blood created certain 

presumptions as to whether or not a person was 

under the influence of intoxicants. Under the 

present statutory scheme, however, the 

presumptions have been abolished. Instead, the 

statute sets out alternate methods of comitting 

the crime of driving while under the influence. 

The statute does not presume, it defines. Thus, 

driving with a 0.1 percent BAC is one method of 

committing the crime of driving while under the 

influence. (Emphasis added). 

State V. France, 639 P.2d 1320, 1323 (Wash. 1982). As in prior Texas 

cases regarding driving while intoxicated, courts in other states 

dealing with par se intoxication laws have noted that 

Ii] t is well enough known to require no 

elaboration that driving while under the influence 

of liquor is so hazardous that it involves the 

public interest and welfare, and consequently, is 

a proper subject for regulation and control by 

law . . . . 

Greaves v. State, 528 P.2d 805, 807 (Utah 1974). See also Roberts V. 

State, 329 So.2d 296, 297 (Fla. 1976). More specifically, one court 

has noted that 

there is an abundance of scientific support to 

indicate that with a BAC level of 0.1 percent, all 

persons are signif icant ly affected. At that 

level, all persons will have lost one quarter. of 

their normal driving ability, some persons will 

have lost as much as one half of eheir normal 

driving ability and a few people will not be able 

to even sit up in the driver’s seat . . . . “the 

-\ 

p. 292 
Honorable Bob Glasgow - Page 5 (JH-68) 

amount of alcoholic beverages necessary to produce 

a blood alcohol level of 0.1% is considerable and 

is believed by most people to represent abusive 

end excessive acute consumption of alcohol . . . . 

most people who drink alcoholic beverages will 

recognize that the consumption of more than 8 to 9 

“drinks” (that is, a half pint of whiskey. or one 

and one-half six packs of beer, or a quart of 

natural vine) in two or three hours will produce 

subjective effects and impaired physical 

performance. Yet, it is the consumption of 

approximately this amount of beverage that is 

required to produce a blood alcohol of 0.1% in the 

average adult .‘I 

France, supra, at 1322. Just as under existing Texas law, likewise it 

has been held in another state that a per se prohibition 

represents a legislative determination ‘that such 

quantity of alcohol has sufficient adverse effect 

upon any person to make his driving a definite 

hazard to himself and others. We cannot say that 

this determination is unfounded or contrary to the 

facts; a number of studies and many statistics 

have recently been published by experts in this 

field which support that conclusion. 

Coxe v. State, 281 A.2d 606, 607 (Del. 1971). Moreover, just as in 

the existing Texas DWI cases, other state courts considering per se 

intoxication laws similar to Texas’ new statute have held that there 

are two elements to the offense -- the requisite alcohol concentration 

and concurrent operation of a motor vehicle. E, supra, at 607; 

Greaves, supra, at 807-808. 

In addition to the elemental similarities, courts have found that 

the legislative determination that intoxication is definitively 

established by a finding of . 10 percent alcohol concentration does not 

improperly alter the state’s burden any more than the presumption did: 

The breath sample must be analyzed, the machine 

must be proved to be in proper working order 

beyond a reasonable doubt by the State, the 

officer who gives the test must be certified and 

must be proved to be competent at trial. The 

ampules must be proved beyond a reasonable doubt 

at trial to have been properly tested and the 

State always has the burden of proving beyond a 

reasonable doubt to the jury that the 0.1 percent 

reading was a correct one. The defense has the 

p. 293 
Honorable Bob Glasgow - Page 6 (m-68) 

same opportunity to attack that reading as they 

always have had under the prior presumptions. The 

defense is entitled to an expert witness 

instruction . . . . Additional expert testimony, 

while available to the defendant, is not the only 

method of impeaching the reading on the 

breathalyxer. The State's expert testimony may be 

controverted by the defendant testifying about the 

number of drinks he consumed and the effects of 

the alcohol upon him, he may call lay witnesses to 

testify as to those same factors, he may argue 

that the machine must be in error because of the 

slight effect the alcohol had upon him. It is 

simply not the case that the giving of the breath 

sample proves the crime. 

France, supra, at 1326-1327. 

We conclude that the Alfaro decision, which vent against the 

weight of existing authority throughout the nation, misapplied the 

vagueness test. As both the Burg court, at 533, and the Alfaro 

dissent, at 183, recognized: 

"[T]he Constitution does not require impossible 

standards"; and all that is required is that the 

language "conveys sufficiently definite warning as 

to the proscribed conduct when measured by common 

understanding and practices . . . . That there 

may be marginal cases in which it is difficult to 

determine the side of the line on which a 

particular fact situation falls is no sufficient 

reason to hold the language too ambiguous to 

define a criminal offense." (Citations omitted). 

Roth V. United States. 354 U.S. 476. 491-492 (1957). Thus, we believe 

that Texas courts will confirm the analysis in the Alfaro dissent: 

with near universality it has been 

authoritatively declared that a drinking driver 

who has ingested so much alcohol, as to have 

developed a blood alcohol content of 0.10 percent, 

has, for the public's and his ovn safety, been 

rendered unfit for further driving . . . . BY any 

test of reason and experience he has, and knows he 

has, imbibed a large quantity of alcohol before he 

Aches the proscribed 0.10 percent blood alcohol 

limit. 

. . . . 

p. 294 
Honorable Bob Glasgow - Page 7 (JM-68) 

Under these criteria, a drinking driver is 

patently warned by the statute that his drinking 

must stop, before he has ingested the forbidden 

quantity. 

Alfaro, supra, at 183 (Elkington, J., dissenting). 

SUMMARY 

The per se definition of intoxication in Senate 

Bill No. 1 is constitutional. 

Jr#& 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Colin Carl 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin. Acting Chairman 

Jon Bible 

David Brooks 

Colin Carl 

Jim Moellinges 

Nancy Sutton 

p. 295