.
The Attorney General of Texas
August 18, 1983
JIM MATTOX
Attorney General
Honorable Bob Glasgow Opinion No. JM-68
Supreme Court Building
P. 0. BOX 12546
Chairman
Austin. TX. 76711. 2546 Subcommittee on Criminal Matters Re: Constitutionality of
5121475.2501 Texas State Senate Senate Bill No. 1 relating to
Telex 9ux374.1367 P. 0. Box 12068, Capitol Station per se definition of lntoxica-
Telem~ier 5121475.0266
Austin, Texas 78711 tion
1607 Main St.. Suite 1400 Dear Senator Glasgow:
Dallas. TX. 75201.4709
2141742.8944 You have inquired about the constitutionality of the so-called
per se intoxication rule contained in Senate Bill No. 1, the driving
4624 Alberta Ave.. Suite 160
while intoxicated legislation recently enacted by the Sixty-eighth
EI Paso. TX. 799052793 Legislature. Sections 3 and 4 of that act, amending, respectively,
!315/533-3464 articles 67011-l and 67011-5. V.T.C.S.. contain provisions defining
/h “intoxicated”-to include T’having an alcohol concentration of 0.10
percent or more.” We find that these provisions. which replace a
,220 Dallas Ave.. Sulk 202
Houston. TX. 77002.6966
presumption of intoxication derived from a finding of 0.10 alcohol
7 13165OG666 concentration with a per se definition based on such a determination,
are not constitutionally objectionable.
806 Broadway. Suite 312
You have directed our attention to People v. Alfaro, 192 Cal.
Lubbock, TX. 79401.3479
6061747.5236
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
4309 N. Tenth. Suite B Burg v. Municipal Court, 192 Cal. Rptr. 531 (Cal. Ct. App. 1983). a
McAllen. TX. 76501-1685 coequal California judicial panel found that the same law “is not
5121662-4547
vague and is therefore constitutional. valid, and enforceable.” Both
California courts agreed that the applicable standard is the one
200 Main Plaza. suite 400 stated in Connally v. General Construction Company, 269 U.S. 385, 391
San Anlonio, TX. 78205-2797 (1926):
5121225.4191
That the terms of a penal statute creating a
An Equal OpportUnitYl new offense must be sufficiently explicit to
Affirmat~e Action Employer 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 constitu-
tionally 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