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# TheAttorney GeneralofTexas August 18, 1983 JIMMATTOX Attorney General

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An Equal OpportUnitYl Affirmat~e Action Employer Honorable BobGlasgow Chairman Subcommittee onCriminal Matters Texas State Senate P. 0. Box 12068, Capitol Station Austin, Texas 78711 Opinion No.JM-68 Re: Constitutionality of Senate Bill No. 1relating 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 3and 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.” Wefind that these provisions. which replace a presumption of intoxication derived from a finding of 0.10 alcohol concentration with aper se definition based on such adetermination, 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 tobeunconstitutional, declaring it tobe “fatally vague in its notice provisions, andhence unenforceable.” However, in Burgv. 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, 269U.S. 385, 391 (1926): That the terms of a penal statute creating a

new offense must be sufficiently explicit to inform those whoare subject toit 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. Andastatute which either forbids or requires the doing of an act in terms so vague that men of COIMClOTl intelligence mustnecessarily guess at its meaning

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and differ as to its application, violates the first essential of dueprocess of law. The Alfaro court contended that the California per se intoxication statute

gives notice only that aparticular 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 commonunderstanding, as demonstrared by the fact that test results of clinically obtained specimens mustbe interpreted at trial byanexpert 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 bythe statute. Onthe 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 hemust 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 byanyconstitutional standard knownto 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 newTexas definition of intoxication, wewill describe the status of the existing presumption of intoxication based on a test finding of .lO percent alcohol concentration in adriving while intoxicated defendant. It is well established inTexas

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that the offense of “driving anautomobile upon a public highway while intoxicated” consists of two elements; intoxication and driving upon ahighway in such condition. Snider v. State, 165 S.W.2d 904 (Tex. Cr. App. 1942). Acriminal or unlawful intent is not anessential element of the offense. Joiner v. State, 161Tex. Cr. App. 526, 279S.W.2d 333 (1955). FXParte Ross, 522S.W.2d 214, 217-218 (Tex. Cr. App. 1975). See also Reedv. State, 624 S.W.2d 708 (Tex. App. - Houston 114th Dist.] 1981, nopet). 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 adecision is legislative in nature andis foreclosed by the Legislature’s judgment as reflected inarticle 67011-5. Slagle v. State, 570S.W.2d 916, 919 (Tex. Grim. App. 1978). “Whether a particular blood alcohol level should carry the weight of a presumption Is amatter 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 apresumption bynoting “that thejury mayaccept 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 adriving while Intoxicated prosecution, that court has noted:

Astatutory presumption permits aninference tobe drawn from proof of certain facts. In this instance the statute permits the jury to infer that aperson is intoxicated if it is proved that there was 0.10 percent alcohol in his blood when hedrove amotor vehicle onapublic highway. The state is not relieved of the burden of proving each element of the offense beyond a reasonable

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?

doubt. In order to take advantage of the presumption the state must prove each fact giving rise to thepresumption beyond areasonable doubt. Easdonv. State. 552S.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 aper 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: Undertheprior DWIstatute
. . . theamount 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 BACis one method of committing the crime of driving while under the influence. (Emphasis added). State V. France, 639P.2d 1320, 1323 (Wash. 1982). Asin prior Texas cases regarding driving while intoxicated, courts in other states dealing with par seintoxication 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 andwelfare, and consequently, is a proper subject for regulation and control by law

. . . . Greaves v. State, 528P.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 aBAClevel 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 andafewpeople will not be able to even sit upin the driver’s seat
. . . . “the -\

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amountof alcoholic beverages necessary toproduce ablood alcohol level of 0.1% is considerable and is believed by most people to represent abusive endexcessive acute consumption of alcohol

. . . . most people who drink alcoholic beverages will recognize that the consumption of morethan 8to 9

“drinks” (that is, ahalf 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 toproduce ablood alcohol of 0.1% in the average adult

.‘I France, supra, at 1322. Just asunder existing Texas law, likewise it has been held in another state that aper seprohibition

represents a legislative determination ‘that such quantity of alcohol has sufficient adverse effect upon any person to makehis driving a definite hazard tohimself andothers. Wecannot 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 DWIcases, other state courts considering per se intoxication laws similar to Texas’ newstatute have held that there are twoelements to the offense -- the requisite alcohol concentration and concurrent operation of amotor vehicle. E, supra, at 607; Greaves, supra, at 807-808. Inaddition tothe elemental similarities, courts have found that the legislative determination that intoxication is definitively established byafinding of

.10percent alcohol concentration does not improperly alter the state’s burden anymorethan 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 whogives the test must be certified and must be proved to be competent at trial. The ampules must be proved beyond areasonable doubt at trial to have been properly tested and the State always has the burden of proving beyond a reasonable doubt to thejury that the 0.1 percent reading was a correct one. The defense has the

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same opportunity to attack that reading as they always have hadunder 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. TheState's expert testimony maybe controverted bythe defendant testifying about the number of drinks he consumed and the effects of the alcohol uponhim, hemaycall lay witnesses to testify as to those same factors, he mayargue that the machine mustbe 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. Weconclude 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"; andall that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct whenmeasured by common understanding and practices

. . . . That there maybe marginal cases inwhich 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 acriminal offense." (Citations omitted). Roth V. United States. 354U.S. 476. 491-492 (1957). Thus, webelieve 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 ablood alcohol content of 0.10 percent, has, for the public's and his ovn safety, been rendered unfit for further driving

. . . . BYany test of reason andexperience hehas, andknowshe has, imbibed alarge quantity of alcohol before he Aches the proscribed 0.10 percent blood alcohol limit.

. . . .

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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 Theper sedefinition of intoxication in Senate Bill No. 1is constitutional.Jr#&

JIM MATTOX Attorney General of Texas TOMGREEN First Assistant Attorney General DAVIDR. RICHARDS Executive Assistant Attorney General Prepared byColin Carl Assistant Attorney General APPROVED: OPINIONCOMMITTEE Rick Gilpin. Acting Chairman JonBible David Brooks Colin Carl JimMoellinges Nancy Sutton

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