### THE ATTORNXCY GENERAL OP ESAS August 28. 1987

Bonorable CharlesChapman CriminalDistrictAttorney Hays County Courthouse,Room 208 SanMarcos, Texas 78666 opinionNo. Jn-777 Re: Whether a loss of "physical ormental faculties"under artize 67011-1, V.T.C.S.. represents moTe than one distinct offense for purposes of a criminal complaint DearMr. Chapman: You ask Under the amended DWI statute, does loss of physical s mental faculties represent two (2) separate and distinct offenses which must necessarily be pled in alternative count . . . or does loss of "physical AND mental faculties" represent one (1)offense which can be pled in a single count? Article 67011-l.V.T.C.S.,provides:

(a) In this article:

. . . . (2) 'Intoxicated'meansi (A)not having the normal usa of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into thebody: or (B)having an alcohol concentration of 0.10 or more.

. . . . (b)A person commits an offense if the personElonorable CharlesChapman - Page 2 (JM-777)

is intoxicatedwhile driving or operating a motor vehicle in a publicplace. In Forte v. State. 707 S.W.Zd 89 (Tex.Grim. App. 1986).aff'd. 722 S.W.2d 219 (Tex.App. - Fort Worth, 1987). followingpassage of the current statute the court said:

In 1983, the Legislature amended the law and provided that driving while intoxicated was an offense if a defendant drove or operated a motor vehicle in a public place while intoxicated. V.A.C.S., art. 67011-l(b) (Supp. 1984). Additionally, the definition of 'intoxication'was broadened to include:

(A)not having the normal use ofmental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into thebody; or (B)having an alcohol concentration of 0.10percent or more. V.A.C.S., art. 6701&-l(a)(2) (Supp. 1984). (Footnoteomitted). This extension of the definition of 'intoxication' replaced the former singulardefinitionwith two alternative definitions. One of those alternatives created a new definition of 'intoxication'based'uponalcohol concentrationof 0.10% in thebody. (Emphasisadded). 707 S.W.2d at 94. In Russell v. State, 710 S.W.2d 662 (Tex. App. - Austin 1986. pet. ref'd) the court held that under the statutory definition of intoxication, an element of the offense prohibited under article 67011-1, the prohibited act may be committed in one of two different ways, stating:

In a prosecution under art. 67011-l. the prohibitedact isbeing intoxicatedwhile-driving. Under the statutory definition of 'intoxicated' quoted above, a personmay commit this prohibited act in one of two distinct ways: (1)by driving while not having the normal use of his mental or physical faculties by reason of the introduction

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of alcohol or a controlled substance, or (2)by driving while having an alcohol concentration of 0.10 ormore. (Emphasisadded). 710 S.W.2d at 663-64. In Scherliev. State, 715 S.W.2d 653 (Tex.Grim. App. 1986) the Court of Criminal Appeals, quoting from the Court of Appeals, stated that: The new definition of 'intoxicated' in art.

67011-l(a)(2)(B) . . .an alcohol concentrationof O.lOE constitutesintoxicationstandingalone. It is a separate, independent. additional way in which the crime of driving while intoxicatedmay be committed. (Emphasisadded). It is our opinion that the courts will hold "not having the normal use of mental or physical facultiesby reason of the introduction of alcohol . . ." while operating a motor vehicle in a public place to be a single offense. We believe this conclusion to be consistent with the general rule set forth in Jurek v. State, 522 S.W.2d 934, 941 (TexGrim.App. 1975).

Where severalways an offense may be committed are set forth in a statuteand are embraced in the same definition, are punishable in the same manner, and are not repugnant to each other. they are not distinct offenses, and may be charged in one indictment. Nicholas v. State, 23 Tex.App. 317, 5 S.W. 239; Ferguson v. State, 80 Tex.Cr.R. 383, 189 S.W. 271;Todd v. State, 89 Tex.Cr.R. 99, 229 S.W. 515. The loss of physical or mental faculties embraced in the same definition in article 67011-l(a)(2)(A) are punishable in the same manner and are not repugnant to each other since a person could have the loss of both mental and physical faculties by virtue of intoxication. The authorities cited herein make it clear that an alcohol concentrationof 0.10% is a separate, independent,additional way in which the offense of driving while intoxicated may be committed.

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SUMMARY "Not having the normal use of mental or physical faculties by the reason of the introduction of alcohol" while operating a motor vehicle in a public place is a single offense under article 67011-l. V.T.C.S., and can be pled in one count in thecharging instrument. Very ItrulyyourA)

JIM MATTOX Attorney General of Texas HARY KELLER ExecutiveAssistantAttorney General JDDGE ZOLLIE STEAXLIZY SpecialAssistantAttorney General RICK GILPIN Chairman,Opinion Committee Preparedby Tom G. Davis AssistantAttorney General

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