Chapter 49
Intoxication Offenses
49.19 Instruction—Misdemeanor Boating While Intoxicated
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of boating while intoxicated.
Relevant Statutes
A person commits the offense of boating while intoxicated if the person is intoxicated while operating a watercraft.
[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.
Watercraft
“Watercraft” means a vessel, one or more water skis, an aquaplane, or another device used for transportation or carrying a person on water, other than a device propelled only by the current of the water.
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 a watercraft 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
- by 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, both 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 “Watercraft.” The definition of “watercraft” is based on Tex. Penal Code § 49.01(4). This definition does not appear to require that the watercraft have a motor. The legislature does not define the term watercraft in the Texas Parks and Wildlife Code. However, the term motorboat is used and defined at Tex. Parks & Wild. Code § 31.003(3), and the legislature chose not to limit the definition of the term watercraft in the Penal Code in a similar manner. The legislature does clearly exclude from the definition provided in Penal Code section 49.01(4) any “device propelled only by the current” (emphasis added). The Committee believes that this definition thus may include any vessel propelled by motor, wind, or human power, such as sailboats, canoes, rowboats, rafts, kayaks, skis attached to motorized vessels, and motorized jet skis.
The definition of “watercraft” also appears in the Texas Transportation Code, where it means “a vessel subject to registration under Chapter 31, Parks and Wildlife Code.” Tex. Transp. Code § 683.001(8). If the legislature intended to define “watercraft” in the same manner as in the Penal Code, the Committee believes it would have done so rather than providing the alternative and different definition contained in Tex. Penal Code § 49.01(4). The Committee could find no case law on this point. However, if the Transportation Code definition does control, prosecutions would be limited in at least two ways. First, boating while intoxicated charges could be brought only if the watercraft operated in “public water.” Tex. Parks & Wild. Code § 31.004. Second, this Transportation Code definition appears to exempt all vessels registered in another state or country (Tex. Parks & Wild. Code § 31.022(a)(1)(2)) and “all canoes, kayaks, punts, rowboats, rubber rafts, or other vessels under 14 feet in length when paddled, poled, oared, or windblown” (Tex. Parks & Wild. Code § 31.022(c)).
Enhanced Misdemeanor Boating 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
Boating while intoxicated is prohibited by and defined in Tex. Penal Code § 49.06. 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).