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Intoxication Manslaughter:  Texas Penal Code §49.08

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It is undisputed that intoxicated drivers can be dangerous and deadly hazards behind the wheel.  In fact, Drunk While Intoxicated (“DWI”) accidents are reported to be the cause of someone dying every nine (9) hours and six (6) minutes in the Lone Star State, according to August 2021 statistics provided by  the Texas Department of Transportation.

Of course, not all of these fatal drunk driving crashes will result in a serious felony prosecution under Texas law.  It is only in certain circumstances that law enforcement will decide to pursue arrest and conviction of that drunk driver on the basis a criminal statute defining the crime of “intoxication manslaughter.”

What is the Crime of Intoxication Manslaughter?

The Texas Legislature has defined “intoxication manslaughter” to be a crime in Texas Penal Code §49.08, which provides that a person commits the offense of “intoxication manslaughter” if the person:

(1)  operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

What is Intoxication Under the Law?

For purposes of this statute, “intoxication” is defined in Texas Penal Code §49.01(2) as:

(A)  not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B)  having an alcohol concentration of 0.08 or more. 

As for “alcohol concentration,” this means the number of grams of alcohol per (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine.   Texas Penal Code §49.01(1).

Possible Stacking of Intoxication Manslaughter Charges

For anyone facing charges of intoxication manslaughter, it is important to understand how a violation of this law can be charged by the prosecutor.  If there was only one victim who died in the drunk driving accident, then there is only one charge of intoxication manslaughter to be filed against the accused.

However, if more than one person perished in the crash, then those charges can multiply.  Two victims will mean two separate charges of intoxication manslaughter will be filed; three victims will tally to three charges, etc., in what is called “stacking” by the ADA.

Each charge will come with its own corresponding penalty, as defined in the statute.  Therefore, if there are multiple victims in the DWI accident, then the penalty that the accused faces upon conviction may well exceed the statute’s maximum sentence for a single offense because of the prosecution’s stacking of the charges.

Intoxication Manslaughter versus Vehicular Manslaughter

In Texas, “intoxication manslaughter” is not the same crime as that of “vehicular manslaughter.”  The Texas Legislature has not created a special law that defines “vehicular manslaughter,” but this does not keep prosecutors from filing charges for this crime.

The Texas District Attorney’s Office will adapt either Texas Penal Code §19.04 or Texas Transportation Code §§545.401, 545.420 to form the basis of criminal charges for vehicular manslaughter in situations where a fatal motor vehicle accident allegedly was caused by the reckless driving of the accused.

Both Require Proof of Reckless Conduct and Fatal Accident

Both intoxication manslaughter and vehicular manslaughter allegations will require proof of reckless behavior as defined by law.  Pursuant to Texas Penal Code §6.03(c) “reckless” behavior is defined as:

“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

Both intoxication manslaughter and vehicular manslaughter charges will also require proof of accidents where someone has died because of bodily injuries sustained by the impact of a motor vehicle (or aircraft, watercraft, or amusement ride).

Additional Proof Required in Intoxication Manslaughter Case

However, the key difference between these two crimes is that “intoxication manslaughter” involves allegations that the driver was intoxicated and under the influence of drugs or alcohol at the time of the incident.

No such proof of intoxication is required to support a conviction for vehicular manslaughter.  Moreover, the state, coupled with admissible and authenticated evidence of driving while intoxicated (DWI), also has to prove that the accused’s intoxication was (a) the cause of the accident which (b) caused the death of the accident victim in the intoxication manslaughter case.

This is a key distinction between intoxication manslaughter and a simple manslaughter case.  In a vehicular manslaughter case, the state needs only to prove a reckless act that caused the death of another.

What this means to an experienced Texas DWI criminal defense attorney is that the ADA will typically re-indict an intoxication manslaughter case to a regular manslaughter case, alleging multiple reckless acts which will include intoxication among them.

Intoxication Manslaughter versus Homicide

Homicide, under Texas law, involves evidence to show that the accused acted consciously, with premeditation, and with motive.  However, manslaughter is not considered to be homicide in Texas.

Manslaughter, by definition, involves someone proven to have recklessly caused the death on an individual, even if there was no intent to kill.  Texas Penal Code §19.04 is specific that “manslaughter” occurs when a “person … recklessly causes the death of an individual.”

Mens Rea: Reckless Behavior

Manslaughter is shown by the prosecution with admissible evidence that establishes beyond a reasonable doubt that the accused acted in a reckless manner at the time of the accident where someone was killed.  The ADA does not need to have evidence of motive, for instance, or any conscious desire to harm another person.

In intoxication manslaughter cases, if the ADA can prove up that the driver was legally intoxicated at the time of the crash, then this fact alone establishes “reckless conduct” to support the manslaughter charge.

Here, the state must prove the elements of Texas Penal Code §49.08:

(1) the accused operated a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride;

(2) the accused was intoxicated;

(3) by reason of that intoxication, the accused caused the death of another;

(4) by accident or mistake.

Intoxication Manslaughter and the Vehicle as a “Deadly Weapon”

When there is a fatal drunk driving accident, the prosecution may consider pressing charges of intoxication manslaughter with the added factual allegation that the motor vehicle itself was used as a “deadly weapon.” This is important because in any felony case filed in Texas, if the prosecution can prove up that the accused used a deadly weapon during the commission of the offense or in immediate flight therefrom, then the judgment against the defendant can be much harsher. Texas Code of Criminal Procedure art. 42A.054.

How much harsher?  With a deadly weapon finding, the resulting sentence can prohibit good time credits in prison that would otherwise allow early release (until at least half of the sentence has been served), as well as limiting the circumstances where probation may be granted.

What is a “Deadly Weapon” in Texas?

Under Texas Penal Code §1.07(a)(17), “deadly weapon” is defined as either:

(A)  a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B)  anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. 

While a car, minivan, pickup, motorcycle, or SUV clearly is not designed for the purpose of inflicting death or serious bodily injury like a pistol or pipe bomb, for instance, motor vehicles driven on Texas roads nevertheless can meet the statutory definition of “deadly weapon.”  This occurs when the motor vehicle “… was intentionally, recklessly or negligently used as a weapon by the accused,” in accordance with Texas Penal Code §1.07(a)(17)(B).  Nguyen v. State, 506 S.W.3d 69, 76 (Tex. App.-Texarkana 2016, pet. ref’d).

The burden of proof to establish that the accused used a deadly weapon in the commission of the offense of intoxication manslaughter is not difficult for the ADA to meet.  Under the law, the prosecution need only show that the manner in which the motor vehicle was used or intended to be used was capable of causing death or serious bodily injury.

This is done with evidence that is independent of the evidence that there was a crash as well as the evidence of intoxication.  It can be shown by the manner of driving at the time of the collision; if the ADA can show that the driver was driving recklessly or in a dangerous manner, then the vehicle can be legally deemed a “deadly weapon” under the law.   See Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008); Couthren v. State, 571 S.W.3d 786, 790 (Tex. Crim. App. 2019).

Once the prosecution has established that the vehicle in an intoxication manslaughter case was in fact a “deadly weapon,” this will limit the discretion of the trial court in entering a judgment in the case.  The judge at the sentencing hearing will have to follow the statutory requirements as defined in the law.

Specifically, Texas law will require a deadly weapon finding to be included in the judgment. Texas Code of Criminal Procedure art. 42A.054.  This finding will limit eligibility for community supervision, parole, and mandatory supervision of the accused upon conviction. Texas Gov’t Code §§ 508.145(d)(1), 508.149(a)(1), 508.151(a)(2).  See, Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017).

Intoxication Manslaughter and Failure to Stop and Render Aid

It is not uncommon for a drunk driver to drive away from the scene of an accident, even if the collision was severe and people died in the crash.  The driver may not be aware of the incident; the driver may assume they hit a curb or speedbump; or the driver may understand there was a collision, but not realize that someone was hurt.  Sometimes, the driver is simply so scared they just keep driving.

From the perspective of law enforcement, this situation can rise to a separate criminal act called “failure to stop and render aid.”  Texas Transportation Code § 550.021(a) (the Failure to Stop and Render Aid Statute).

This statute requires a driver to stop and render aid: (a) if the driver knows that they were involved in an accident and another person was injured or killed; or (b) if the driver knows that they were involved in an accident that was reasonably likely to result in injury to or the death of a person. Curry v. State, 622 S.W.3d 302, 309 (Tex. Crim. App. 2019).

Separate Felony for Failure to Stop and Render Aid

Pursuant to the Failure to Stop and Render Aid Statute, the ADA will have to prove up that the operator of the motor vehicle failed to:

(1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;

(2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident;

(3) immediately determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and

(4) remain at the scene of the accident until the operator complies with the requirements of Texas Transportation Code §550.023.

If this charge is proven with admissible evidence beyond a reasonable doubt, then sentencing will include punishment under the Failure to Stop and Render Aid Statute that is distinct from any punishment for intoxication manslaughter.  Pursuant to Texas Transportation Code § 550.021(c):

  • it is a felony of the second degree if the accident resulted in the death of the person;
  • it is a felony of the third degree if the person survived but suffered serious bodily injury;
  • for all other accidents where the victim is injured, it is punishable with imprisonment in the Texas Department of Criminal Justice for not more than five (5) years or confinement in the county jail for not more than one (1) year; (B) a fine not to exceed $5,000; or (C) both the fine and the imprisonment or confinement.

Potential Sentence for Intoxication Manslaughter in Texas

A conviction for Intoxication Manslaughter is the most severe charge that can be pursued by the prosecution in a drunk driving or intoxication case.  Under Texas Penal Code §49.08, it carries a punishment a felony of the second degree, unless Texas Penal Code §49.09 allows for the sentence can be enhanced.

In addition to imprisonment, there is a statutory requirement that a minimum of 240 hours of community service must be served by anyone convicted of intoxicated manslaughter in Texas (and the prosecutor can request as many as 800 community service hours).

As for driving, upon conviction the accused’s driver’s license is statutorily suspended for six (6) months to two (2) years.  Afterwards, there will be the requirement of a $2,000 payment per year for the first three (3) years after conviction in order to keep the driver’s license active in Texas.

Defenses to Intoxication Manslaughter

First of all, the statute provides that there is no defense to intoxication manslaughter charges that the defendant driver is or has been entitled to use the intoxicating substance (e.g., alcohol, controlled substance, drug, dangerous drug, or other substance).  The fact that the driver was under the influence of prescription medication, for instance, will not successfully shield against an intoxication manslaughter conviction.

However, there are other defenses that may apply in the particular case.  First of all, the defense will challenge the prosecution’s ability to meet its burden to prove beyond a reasonable doubt the elements of the charge itself, i.e., that the accused (1) operated a motor vehicle in a public place, (2) was intoxicated, and (3) by reason of that intoxication, caused the death of the victim by accident or mistake.

If the defense can refute with admissible evidence that “but for” the accused’s intoxication, the death would not have occurred, then the elements of the charge have not been established by the state.  Here, for instance, the fact of intoxication may be shown, but if there were other circumstances that caused the crash, as for example the victim’s failure to stop at a stop sign, then there may be a successful defense of the case.

Of course, the defense will also challenge the intoxication element of the state’s case.  Every aspect of the determination of intoxication must be evaluated from a constitutional perspective as well as from a scientific viewpoint. This includes the possible application of the “time of driving” defense, where it is shown that there is a reasonable doubt regarding the intoxication of the driver at the time of the accident, arguing that the state has not been able to prove the driver was legally intoxicated at the time the accident happened.

Additionally, it is important to consider that the penalty for Vehicular Manslaughter is not as severely defined by the Texas Legislature as one for Intoxication Manslaughter.   In some instances, a criminal defense strategy will be to negotiate a plea down to the lesser charge, if weaknesses can be shown in the prosecution’s case.

For anyone facing investigation or arrest for intoxication manslaughter in Texas, it is very important to have the assistance and support of a Texas criminal defense attorney experienced in felony DWI cases. These cases can be life-altering for the accused as well as their loved ones, and early legal representation can be vital.


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles, ”The Early Part of a Texas Criminal Case in State or Federal Court” and Will You Go to State Jail or Texas Prison? The Importance of Plea Negotiations.

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