                  THE         ATTORNXCY       GENERAL
                                OP     ESAS

                                August 28. 1987




Bonorable Charles Chapman                 opinion No. Jn-777
Criminal District Attorney
Hays County Courthouse, Room 208          Re: Whether a loss of "physical
San Marcos, Texas 78666                   or mental faculties" under arti-
                                          ze   67011-1, V.T.C.S.. repre-
                                          sents moTe than one distinct
                                          offense for purposes of a crim-
                                          inal complaint

Dear Mr. Chapman:

    You ask

             Under the amended DWI statute, does loss of
          physical s    mental faculties represent two (2)
          separate and distinct offenses which must nec-
          essarily 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 the body: or

             (B) having an alcohol concentration of 0.10 or
          more.

              .   .   .   .

              (b) A person commits an offense if the person
ElonorableCharles Chapman - Page 2   (JM-777)




         is intoxicated while driving or operating a motor
         vehicle in a public place.

     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). following passage 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). Addition-
         ally, the definition of 'intoxication' was broad-
         ened to include:

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

                 (B) having an alcohol      concentration of
            0.10 percent or more.

         V.A.C.S.,   art.   6701&-l(a)(2)       (Supp.   1984).
         (Footnote omitted).

            This extension of the definition of 'intoxica-
         tion' replaced the former singular definition with
         two alternative definitions.       One of those
         alternatives created a new definition of 'intox-
         ication' based'upon alcohol concentration of 0.10%
         in the body. (Emphasis added).

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
         prohibited act is being intoxicated while-driving.
         Under the statutory definition of 'intoxicated'
         quoted above, a person may 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



                               p. 3660
Eonorable Charles Chapman - Page 3   (J-g-777)




          of alcohol or a controlled substance, or (2) by
          driving while having an alcohol concentration of
          0.10 or more. (Emphasis added).

710 S.W.2d at 663-64.

     In Scherlie v. 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 concentration of
         O.lOE constitutes intoxication standing alone. It
         is a separate, independent. additional way in
         which the crime of driving while intoxicated may
         be committed. (Emphasis added).

     It is our opinion that the courts will hold "not having the
normal use of mental or physical faculties by reason of the introduc-
tion 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 (Tex Grim. App. 1975).

             Where several ways an offense may be committed
          are set forth in a statute and 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 concentration of 0.10% is a separate, independent, additional
way in which the offense of driving while intoxicated may be
committed.




                               p. 3661
Honorable Charles Chapman - Page 4       (34-777)




                               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    Itruly yourA)



                                            JIM     MATTOX
                                            Attorney General of Texas

HARY KELLER
Executive Assistant Attorney General

JDDGE ZOLLIE STEAXLIZY
Special Assistant Attorney   General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General
                                                                        ..




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