What Does “Intoxicated” Mean Under Texas Law?

When people hear the word “intoxicated,” they often think it simply means being drunk. But the legal definition of intoxication in Texas is broader than that.

Under Texas Penal Code Chapter 49, Section 49.01, a person can legally be considered “intoxicated” in two different ways. The law does not limit intoxication to alcohol, and a person does not necessarily have to have a blood-alcohol concentration of 0.08 or higher to meet the legal definition.

This distinction is important because the definition of intoxication is used in several Texas criminal offenses, including driving while intoxicated (DWI), boating while intoxicated, flying while intoxicated, intoxication assault, and intoxication manslaughter.

The Two Legal Definitions of Intoxication

Texas Penal Code § 49.01(2) provides two alternative definitions.

A person is legally “intoxicated” if:

• The person does not have the normal use of their mental or physical faculties because of a substance introduced into the body; or
• The person has an alcohol concentration of 0.08 or more.

In other words, Texas law provides both a “loss of faculties” definition and an “alcohol concentration” definition.

These are separate ways of establishing intoxication.

1. Loss of Normal Mental or Physical Faculties

The first definition focuses on how a substance affects a person’s ability to function.

Section 49.01 says a person is intoxicated when they do not have the normal use of their mental or physical faculties because of alcohol, a controlled substance, a drug, a dangerous drug, a combination of substances, or another substance introduced into the body.

Put simply, the question is not merely:

“Did the person consume alcohol?”

Instead, the legal question can be whether the substance caused the person to lose the normal use of their mental or physical abilities.

What are “mental faculties”?

Mental faculties generally concern a person’s ability to think and function normally.

Examples may include the ability to:

• Pay attention;
• Make appropriate decisions;
• Understand what is happening;
• Remember information;
• Reason normally; and
• Respond appropriately to circumstances.

What are “physical faculties”?

Physical faculties concern a person’s ability to control and coordinate their body.

Examples may include:

• Walking normally;
• Maintaining balance;
• Coordinating movements;
• Controlling a vehicle;
• Speaking clearly; and
• Performing ordinary physical tasks.

The important point is that Section 49.01 does not require a person to be completely incapacitated. The statutory language concerns the loss of the normal use of mental or physical faculties.

2. An Alcohol Concentration of 0.08 or More

The second definition is more numerical.

Texas law provides that a person is intoxicated if the person has an alcohol concentration of 0.08 or more.

This is commonly associated with the term BAC, or blood alcohol concentration, although Texas Penal Code § 49.01 uses the broader term “alcohol concentration.”

The statute defines alcohol concentration in terms of the amount of alcohol measured in:

• 210 liters of breath;
• 100 milliliters of blood; or
• 67 milliliters of urine.

Therefore, the statutory definition is not limited to a particular type of test.

You Do Not Have to Be at 0.08 to Be Legally Intoxicated

One of the most common misunderstandings about Texas intoxication law is the belief that 0.08 is the only number that matters.

It isn’t.

Because Section 49.01 contains two alternative definitions, a person may be considered intoxicated under the loss-of-faculties definition even when the person’s alcohol concentration is below 0.08. Conversely, the statute specifically provides that an alcohol concentration of 0.08 or more satisfies the statutory definition.

For example, imagine two people who have consumed alcohol. One person has an alcohol concentration below 0.08 but is alleged to have lost the normal use of mental or physical faculties because of alcohol. The numerical alcohol concentration does not automatically answer the legal question under § 49.01.

This is one reason why a Texas DWI case can involve much more than a single breath or blood-test number.

Intoxication Is Not Limited to Alcohol

Another important part of the Texas definition is that alcohol is only one substance covered by the statute.

Section 49.01 expressly refers to:

• Alcohol;
• Controlled substances;
• Drugs;
• Dangerous drugs;
• Combinations of two or more substances; and
• Other substances introduced into the body.

That means a person’s alleged intoxication can involve drugs or a combination of alcohol and other substances.

The legal issue is whether the substance or substances caused the person to meet one of the statutory definitions of intoxication.

Why Section 49.01 Matters in a DWI Case

Section 49.01 is a definitions section. It does not, by itself, say that every intoxicated person has committed a crime.

Instead, the definition is used by other provisions of Chapter 49.

For example, Texas Penal Code § 49.04 provides that a person commits DWI if the person is intoxicated while operating a motor vehicle in a public place.

This means that a DWI case generally involves more than simply asking whether someone was intoxicated. The circumstances of the alleged conduct also matter.

The same statutory definition can be relevant to other Chapter 49 offenses involving aircraft, watercraft, amusement rides, serious bodily injury, or death.

A Simple Way to Remember the Definition

For the average reader, Section 49.01 can be simplified into two questions:

Question 1: Did alcohol, drugs, or another substance cause the person to lose the normal use of their mental or physical faculties?

OR

Question 2: Was the person’s alcohol concentration 0.08 or higher?

If either statutory definition is satisfied, the person meets the Penal Code’s definition of “intoxicated.”

What “Intoxicated” Does Not Automatically Mean

It is also important not to confuse the definition of intoxication with the elements of a particular offense.

For example, being legally “intoxicated” under § 49.01 does not automatically mean a person has committed DWI. DWI under § 49.04 also requires that the person operates a motor vehicle in a public place.

Similarly, Texas has a separate public-intoxication offense. Under § 49.02, a person commits that offense when the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

So, the definition of intoxication is one building block of Texas intoxication-related criminal law. The particular offense determines what additional facts must be established.

The Bottom Line

Texas Penal Code § 49.01 gives a broader definition of intoxication than simply “being drunk.”

Under the statute, a person is intoxicated if either:

• A substance causes the person to lose the normal use of their mental or physical faculties; or
• The person’s alcohol concentration is 0.08 or more.

The first definition focuses on impairment of normal faculties. The second focuses on a specified alcohol concentration.

Understanding this distinction is essential when reading about Texas DWI and other intoxication-related offenses because 0.08 is not the entire legal definition of intoxication in Texas.

Important Legal Disclaimer

This article is intended for general educational purposes and is not legal advice. Texas statutes can be amended, and how the definition applies to a particular case depends on the facts and applicable law. Readers with a pending criminal charge should consult a qualified Texas criminal defense attorney about their specific circumstances.

Primary source: Texas Legislature Online — the official Texas Constitution and Statutes website provides the current text of Texas Penal Code Chapter 49, including § 49.01.