Texas § 49.04 — Driving While Intoxicated

What the Statute Says

Texas Penal Code § 49.04 provides:

"(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. (b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours. (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days. (d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor."

Elements the State Must Prove

1. Operating — active control of a motor vehicle
2. A motor vehicle — includes cars, trucks, motorcycles, certain ATVs
3. In a public place — defined in § 1.07(40); includes streets, parking lots, and even private property open to public access
4. While intoxicated — either loss of normal mental/physical faculties OR BAC ≥ 0.08 (§ 49.01(2))

Penalty Structure

• Standard first offense (§ 49.04(b)): Class B misdemeanor, 72 hours to 180 days jail, $2,000 fine
• With open container (§ 49.04(c)): Class B but 6-day minimum confinement
• BAC 0.15+ (§ 49.04(d)): Class A misdemeanor, up to 1 year jail, $4,000 fine
• 2nd offense (§ 49.09(a)): Class A misdemeanor, 30 days to 1 year, $4,000 fine
• 3rd offense (§ 49.09(b)): Third-degree felony, 2 to 10 years TDCJ, $10,000 fine

Key Cases Interpreting § 49.04

• Mapes v. State, 187 S.W.3d 655 (Tex. App. 2006) — penalty classifications
• Oliva v. State, 525 S.W.3d 286 (Tex. App. 2017) — elements and BAC enhancements
• State v. Karasek, No. 14-09-00834-CR (Tex. App. 2010) — felony DWI prior proof

Common Defenses Under § 49.04

• Motion to suppress under art. 38.23 (unlawful stop, search, or arrest)
• Field sobriety test administration errors
• Breath test calibration and maintenance failures
• Blood test chain of custody challenges
• "Operating" element challenges (sleeping in parked car, passenger disputes)
• Rising BAC defense (BAC was below 0.08 at time of driving)

This analysis is general information, not legal advice. Texas criminal law is complex and fact-specific — consult a licensed Texas attorney about your specific situation.