Texas law does not take kindly to drunk driving, and it have the penalties to match. Even so, the Texas Department of Transportation reports that somebody dies in a crash involving alcohol every eight and a half hours. That’s nearly three people every day, and that doesn’t even include the seriously injured.
Texas law allows a police officer to determine impairment through a field sobriety test in addition to a blood alcohol content (BAC) measurement using breath samples. If you are charged with DWI, you will need a serious defense to ensure you receive the appropriate outcome to your case.
Let’s talk about what constitutes DWI in Texas, the associated penalties, and how an experienced attorney can help you minimize the outcome and receive fair treatment.
Defining DWI – Driving While Intoxicated
Many people use DWI (driving while intoxicated) and DUI (driving under the influence) interchangeably, but there is a distinction in Texas.
Drivers aged 21 and older are charged with DWI, while drivers younger than 21 are charged with DUI. Each age range is subject to a different definition of intoxication.
Intoxication is defined as lacking the normal use of a person’s mental or physical faculties due to ingesting alcohol, drugs, or other substances. Note that “any other substances” can include over-the-counter medications, prescription drugs, and other legally available substances, not just illegal drugs.
To be specific, the Texas Penal Code Section 49.04 lists the following as substances that can cause intoxication under the law:
- Controlled substances
- A drug
- A dangerous drug
- A combination of two or more of these substances
- Any other substance introduced into the body
In other words, if the substance can be shown to intoxicate you, it counts. You are breaking the law from the moment drugs or alcohol affect your flying, driving, or boating ability.
Texas doesn’t allow any wiggle room for getting out of blood alcohol content testing. In Texas, all drivers “imply consent” for blood or breath alcohol testing. Any motorist refusing the test faces licensing suspension, and the more often you refuse, the higher the penalty goes.
DWI – Driving While Intoxicated
Make no mistake; intoxication includes anything a person ingests that affects their physical and mental ability to operate a vehicle. Note that the word vehicle includes more than automobiles — it includes boats, airplanes, and anything else you can drive or fly. (Yes, BWI or boating while intoxicated is a thing.)
Did you know you can get a DWI even if you aren’t driving? The statute says “operating.” That can mean anything once the ignition turns on, even if you’re listening to the radio or running the AC. Operating means any action to “affect the functioning” of the vehicle in a manner that “enables its use.”
Texas law prohibits all motorists from operating a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher. This translates to 80 mg/dl in a lab measurement. In Texas, anyone caught driving with a BAC of 0.08% or higher can be charged with a Class B misdemeanor. If the BAC is 0.15% or higher, the charge can be elevated to a Class A misdemeanor.
Drivers of commercial vehicles in Texas, including school bus drivers, can be charged if their BAC is as low as 0.04% (40 mg/dl).
Here’s one more detail — drunk driving based on the BAC instead of the level of impairment is called per se DWI. Per se DWI may be charged based on the amount of alcohol a person must ingest to reach the legal limit depending on several factors, including:
- Body size
- Number and strength of drinks
DUI – Driving Under the Influence
If you are under 21, you can be charged with DUI under the Texas zero-tolerance laws. That means driving with any detectable amount of alcohol or other substances is illegal. The state is not required to prove intoxication, just that alcohol or another substance, like marijuana, is detected.
A first-offense DUI without enhancements is a Class C misdemeanor, which is good for a $500 fine but no jail time. Your license may be suspended for 60 days. You might be required to perform 20 to 40 hours of community service and complete an educational program related to alcohol abuse.
DWI and DUI Penalties
The harshness of the penalties depends on the circumstances. The courts have a range of allowable penalties depending on the number of prior convictions. Also, the fines you may receive do not include the state fines of $3,000, $4,500, or $6,000 assessed upon sentencing.
Other expenses can include paying $1,000 to $2,000 annually to retain your license for the three years following arrest. Your auto insurance premiums may increase. And you might be placed on probation and/or required to attend or participate in a special education program regarding alcohol abuse. Failing to complete the program can result in losing your license.
A first offense DWI is a Class B misdemeanor that includes:
- A mandatory three days (72 hours) in jail and up to six months
- Fines up to $2,000 with a BAC of 0.08% and up to $4,000 for a BAC of 0.15% or higher
- License suspension for 90 to 120 days, even if not convicted, if you test positive for alcohol via blood, breath, or urine test
- If you need an occupational license, you may be required to install an ignition interlock device (IID)
A second offense DWI is a Class A misdemeanor that includes:
- 30 days to 12 months in jail
- Fines up to $4,000
- License suspension for at least one and up to two years and an annual fee of $2,000 to retain it over the next three years
- Installation of an ignition interlock device (IID) for one year if you have a prior conviction within the past five years
A third DWI offense is a third-degree felony carrying the same penalties as intoxication assault. Intoxication assault means you caused severe bodily injury to someone else while driving drunk.
- Two to ten years in prison
- Fines up to $10,000
- License suspension for one to two years, plus $100 to regain the license after suspension and an annual fee of $2,000 for three years to retain your license
- Installation of an IID for one year with a prior DWI conviction within the past five years
Intoxication manslaughter is killing someone accidentally while driving drunk, a second-degree felony that increases the prison sentence up to 20 years with hundreds of hours of community service.
Drunk driving with a child passenger under 18 elevates everything, including a first offense, to a state jail felony. If the child is under 15, you can be charged with child endangerment. It increases the fine to $10,000, and your license is suspended for an additional 180 days.
An open container in the vehicle is illegal in Texas, even if you aren’t drunk.