Chapter 49
Intoxication Offenses
49.18 Instruction—Misdemeanor Flying While Intoxicated
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of flying while intoxicated.
Relevant Statutes
A person commits the offense of flying while intoxicated if the person is intoxicated while operating an aircraft.
[Include the following if raised by the evidence.]
If a person by the use of medication renders himself more susceptible to the influence of alcohol than he otherwise would have been and by reason thereof became intoxicated from recent use of alcohol, he would be in the same position as though his intoxication was produced by the use of alcohol alone.
[Include the following if raised by the evidence.]
[Substance] is a [controlled substance/drug/dangerous drug].
Definitions
Intoxicated
“Intoxicated” means either (1) 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 (2) having an alcohol concentration of 0.08 or more.
Alcohol Concentration
“Alcohol concentration” means the number of grams of alcohol per 210 liters of breath, 100 milliliters of blood, or 67 milliliters of urine.
Aircraft
“Aircraft” means a device intended, used, or designed for flight in the air.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, two elements. The elements are that—
- the defendant operated an aircraft in [county] County, Texas, on or about [date]; and
- the defendant did this while intoxicated,
by either—
- not having the normal use 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
- having an alcohol concentration of 0.08 or more.
You must all agree on elements 1 and 2 listed above, but you do not have to agree on the method of intoxication listed in elements 2.a and 2.b above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or both of elements 1 and 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the two elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Definition of “Aircraft.” No definition of “aircraft” is provided in the definition section of chapter 49 of the Texas Penal Code, relating to intoxication and alcoholic beverage offenses. Some members of the Committee believed that the term aircraft should be defined despite that absence. Thus, we have borrowed the definition from the Texas Transportation Code. See Tex. Transp. Code § 21.001(2).
Enhanced Misdemeanor Flying While Intoxicated. Driving while intoxicated and similar chapter 49 offenses can be enhanced under Tex. Penal Code § 49.09(a) with proof of a prior conviction.
As with an enhanced misdemeanor driving-while-intoxicated charge, an enhancement under this provision is likely a punishment-stage matter. See Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018). Therefore, the jury should not be instructed on the enhancement in this charge.
Necessity Defense Language. The necessity defense language is included in the instruction at CPJC 49.16 in this chapter only. It could, of course, be modified and incorporated into the above instruction if the defense applies. See also the necessity defense comment at CPJC 49.10 and chapter 9.
Comment
Flying while intoxicated is prohibited by and defined in Tex. Penal Code § 49.05. The definition of “intoxicated” is based on Tex. Penal Code § 49.01(2). The definition of “alcohol concentration” is based on Tex. Penal Code § 49.01(1).