                 .




                                                    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
