Case Information
The Attorney General of Texas
August 18, 1983
JIM MATTOX
Attorney General
P. 0. BOX 12546 5121475.2501 Supreme Telem~ier Telex Austin. 9ux374.1367 TX. 76711. Court Building 5121475.0266 [2546] Texas State Senate Chairman P. 0. Box 12068, Capitol Station Subcommittee on Criminal Matters Austin, Texas 78711 Senate Bill No. 1 relating Re: per se definition Opinion No. JM-68 tion Constitutionality lntoxica- 1607 Main St.. Suite Dallas. 2141742.8944 TX. 75201.4709 [1400] Dear Senator Glasgow:
You have inquired about the constitutionality the so-called
per se intoxication rule contained in Senate Bill No. 1, the driving !315/533-3464 EI Paso. TX. 799052793 4624 Alberta Ave.. Suite [160] articles Legislature. while 67011-l Sections and 67011-5. V.T.C.S.. legislation 3 and 4 of recently that act, amending, enacted contain provisions the Sixty-eighth respectively, defining /h ,220 Dallas Ave.. Sulk 7 13165OG666 Houston. TX. 77002.6966 [202] percent are not constitutionally “intoxicated”-to or more.” We find with a per se definition include T’ objectionable. having derived these provisions. an alcohol from a finding based on such a determination, concentration which of 0.10 alcohol replace of 0.10 a 806 Broadway. Suite 312 You have directed our attention to People v. Alfaro, 192 Cal. Lubbock, TX. 79401.3479 Rptr. 182 (Cal. Ct. App. 1983), which held a comparable 6061747.5236 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 4309 N. Tenth. Suite B McAllen. TX. 76501-1685 coequal California judicial panel found the same law “is not 5121662-4547 vague and is therefore constitutional. valid, and enforceable.” Both
California agreed the applicable standard the one 200 Main Plaza. San Anlonio, TX. 78205-2797 suite [400] stated (1926): in Connally v. General Construction Company, 269 U.S. 385, 391 5121225.4191
That the terms of a penal creating a new offense must be sufficiently explicit An Equal OpportUnitYl inform those who are subject to it what conduct on Affirmat~e Action Employer their part will render them liable its
penalties a well-recognized requirement, consonant alike with ordinary notations fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act terms so vague that men of COIMClOTl intelligence must necessarily guess at its meaning - Page 2 and differ its application, violates
first essential of due process of law. The Alfaro court contended the California per se intoxication statute
gives notice only that a particular percentage the blood of a driver illegal,
without further explication, notwithstanding
the measured concentration in the blood at any given time is plainly not a matter 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
Vehicle Code section 23152, subdivision (b) [the California statute], constitu- tionally defective because fails to provide citizen-motorists with reasonable means
ascertaining and avoiding the conduct proscribed by the statute.
On the other hand, in Burg, supra, at 533, the court held 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 subdivision (b), manifestly warns the drinking that he must discontinue, or at least temper, his drinking after his initial imbibition. lest he reach
forbidden driving level, and face arrest and prosecution. Such a warning
sufficient by any constitutional standard known to me.
Alfaro Hence, at 183 (Elkington. J., dissenting). the central issue you raise is clearly drawn in the contrary positions taken by these California courts. Before we further examine constitutionality of the new Texas definition intoxication, we will describe the status of the existing based on a test finding .lO percent alcohol in a driving while defendant.
It is well established in Texas
Honorable Bob Glasgow - Page 3
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.] Further, the Texas Court of Criminal Appeals has held that no pet).
[i]t common knowledge that
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 recognize that which human experience shown. Examination of definitions
“intoxication” contained in the new Penal~ Code shows the Legislature recognized impairs mental faculties. Moreover, with regard the existing
Ross, at 218-219. presumption intoxication, is settled
[s]uch a decision legislative in nature and is foreclosed the Legislature’s judgment
reflected in article 67011-5. Slagle v. State, 570 S.W.2d 916, 919 (Tex. Grim. App. 1978). “Whether a particular level should carry the weight of a Is a matter 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 impact of such a presumption by noting “that jury may accept or reject the presumption fact even 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 certain facts. In this instance the statute permits jury infer that a person if is proved
there was 0.10 percent in his blood when he drove a motor vehicle on a public highway.
state is not relieved the burden of proving each element the offense beyond a reasonable *4 (~~-68) Honorable Bob Glasgow - Page 4
? In order take advantage the
doubt. 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 derived from .lO percent to a per se definition based on such a finding affects the validity of the regulatory scheme. In describing a virtually identical statutory change, one court recently written:
Under the prior DWI statute . . the amount of in a person’s created certain presumptions as to whether or not a person was under the influence intoxicants. Under the present statutory scheme, however,
presumptions have been abolished. Instead, sets out alternate methods of comitting
the crime of driving while under 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 influence. (Emphasis added).
State V. France, 639 P.2d 1320, 1323 (Wash. 1982). As in prior Texas cases regarding driving while intoxicated, in other states dealing with par se intoxication laws have noted that
Ii] t is well enough known require no elaboration that driving while under the influence liquor is so hazardous involves public interest and welfare, and consequently,
a proper subject regulation and control
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 is an abundance scientific support
indicate that with a BAC level of 0.1 percent, all persons are signif icant ly affected. At
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 *5 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
natural vine) in two or three hours will produce subjective effects and impaired physical performance. Yet, consumption
approximately this amount of beverage
required to produce a blood alcohol of 0.1% in the average adult .‘I Just as under existing Texas law, likewise
France, supra, at 1322.
has been held in another state that a per se prohibition
represents a legislative determination ‘that such quantity 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 considering per se laws similar to Texas’ new statute have held are two elements to the offense -- the requisite concentration and concurrent operation of a motor vehicle. E, at 607; Greaves, supra, at 807-808.
In addition to the elemental similarities, courts have found that legislative determination definitively established by a finding . 10 percent alcohol 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 the State,
officer who gives the test must be certified and must be proved to be competent at trial.
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 - Page 6 (m-68) same opportunity to attack reading as they always have had under the prior presumptions. entitled to an
defense expert witness instruction . . . . Additional expert testimony, while available to the defendant, is not the only method 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
the alcohol upon him, he may call lay witnesses testify as to those same factors, he may argue the machine must be in error because of the slight effect the alcohol had upon him. It simply not the case that the giving of the breath sample proves the crime.
France, supra, at 1326-1327.
We conclude the Alfaro decision, which vent against the weight of existing authority throughout the nation, misapplied 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 is required is that
language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . . . That
may be marginal cases in which is difficult
determine side line on which a particular fact situation falls is no sufficient reason to hold language too ambiguous
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 been authoritatively declared that a drinking
who has ingested so much alcohol, to have developed a blood alcohol content of 0.10 percent, has, for the public's and his ovn safety, been rendered unfit further driving . . . . BY any test of reason and experience he has, and knows he has, imbibed a large quantity before he Aches the proscribed 0.10 percent blood alcohol limit. . . - Page 7
Under these criteria, a drinking patently warned by the statute that his drinking must stop, before he has ingested forbidden quantity.
Alfaro, supra, at 183 (Elkington, J., dissenting).
SUMMARY The per se definition 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