Driving or operating a watercraft under the influence of alcohol is a serious offense in Texas, and convictions are met with harsh penalties. In Texas, Driving Under the Influence—which includes operating a boat—is reserved for minors, and is a separate offense from Driving While Intoxicated (DWI) and Boating While Intoxicated (BWI).

DWI and BWI charges can apply to anyone (including minors aged 17 or over) who commits the offense of operating a car or watercraft while “intoxicated.”

In this in-depth guide, we’ll cover DUI, DWI, and BWI offenses as outlined in Texas law, including their differences, definitions, consequences, and penalties.

What is BWI (BUI)?

In all states across the U.S., it is illegal to operate a boat while you are drunk. In Texas, this offense is called Boating While Intoxicated, though many people use the terms BUI—boating under the influence—and BWI interchangeably.

Texas Penal Code § 49.06 states that “…a person commits an offense if the person is intoxicated while operating a watercraft.”

It goes further to define “watercraft” as the following:

• A vessel
• One or more water skis
• And aquaplane
• A device used for transporting or carrying a person on water

The law also provides a specific definition for “intoxicated”:

(A) 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

(B) having an alcohol concentration of 0.08 or more.

Texas Penal Code § 49.01

You do not need to meet both thresholds to be charged with BWI. For example, slurred speech, a failure to pass sobriety tests, and bloodshot eyes may be enough to give law enforcement officers probable cause for arresting you, even if your BAC levels appear below the legal limit.

Furthermore, a person can be “intoxicated” after consuming legal, over-the-counter, or prescription medication. If your ability to operate the watercraft is impaired due to any substance you’ve consumed, you can be considered legally intoxicated.

Unless there are aggravating factors involved, a first-time BWI in Texas is a Class B misdemeanor. Aggravating factors include a previous DWI or BWI offense, intoxication assault, intoxication manslaughter, and the presence of a child passenger aboard the watercraft.

What is DWI?

In Texas, it is illegal to operate a vehicle in a public place while you are intoxicated. Three factors are taken into account in DWI cases. For a conviction, the court must determine if you were:

• Intoxicated: As defined in the Penal Code, intoxicated can mean having a BAC of 0.08 or greater, or displaying signs of impairment due to alcohol or drugs, including failed roadside sobriety tests or slurred speech.
• Operating a vehicle: The vehicle doesn’t have to be moving. For example, approaching your vehicle and using the keys to unlock the car can be considered “operating.”
• In a Public place: Any place the public, or a large group of the public, has access to.

Unless there are aggravating factors, a first-time DWI in Texas is a Class B misdemeanor. Aggravating factors can include previous BWI or DWI convictions, intoxication assault, intoxication manslaughter, and the presence of a child passenger in the vehicle.

What is DUI?

The Texas Alcohol and Beverage Code defines DUI as follows:

“A minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor’s system.”

Texas Alcoholic Beverage Code § 106.041

In Texas, adults can only be charged with BWI or DWI if they show signs of being drunk (or are otherwise impaired due to the influence of drugs or other substances). However, this is not the case when it comes to minors (those under the age of 21), for whom the State operates a zero-tolerance policy.

In Texas, minors can be charged with Driving Under the Influence (DUI) if they are found driving (or boating) with ANY amount of detectable alcohol in their system—regardless of whether they are “intoxicated.”

If a minor aged 17 or over is also intoxicated while driving or boating, however, they can be charged with DWI or BWI and face the same penalties and consequences as an adult.

The Difference Between BWI and DWI in Texas

Both DWI and BWI offenses are taken very seriously in Texas, and a conviction for either will come with severe punishments and consequences. There are some differences, however, and being aware of them will help you know your rights.

Reasonable Suspicion for the Stop

When making a traffic stop, police officers must establish reasonable suspicion. Officers cannot randomly stop a vehicle but can if they witness suspicious activity. For example, if they see a vehicle swerving, driving erratically, or passing through red lights, they may suspect impaired driving and have grounds to make a traffic stop.

This rule does not apply on water. The Texas Parks and Wildlife code § 31.124 states, “…an enforcement officer may stop and board any vessel subject to this chapter and inspect the boat to determine compliance with applicable provisions.”

In other words, police officers can stop your boat, board, and inspect your vessel at any time to ensure it is safe. These stops are more frequent during holidays when the number of BWI incidents often rises.

Open Containers

There are strict rules about the presence of open containers in a vehicle in Texas. On the road, you can be charged for every instance of an open container of alcohol in your car. For example, if you have three passengers who are drinking while you’re driving, you can receive three Open Container tickets, even if you were not the one drinking.

This law does not extend to boats. On the water, you can have open containers of alcohol on your vessel or jet ski without getting into trouble—as long as you’re not drunk.

Field Sobriety Tests

If you are stopped on suspicion of drunk driving, you may be asked to perform field sobriety tests that include standing on one leg and walking in a straight line.

Roadside standerdized field sobriety tests are not suitable on water where most people will find their balance compromised, regardless of whether they’ve consumed alcohol. Instead, police officers may perform a “Seated Battery of Standardized Field Sobriety Tests.”

Field sobriety tests for BWIs include:

• Finger to Nose Test
• Finger Count Test
• Time Estimation Test
• Hand Coordination Test
• Palm Pat Test
• Horizontal Gaze Nystagmus Test

After the above tests, officers may take you to shore and give you 15 minutes to regain your balance—or lose your “sea legs”—before continuing with further tests.

Similarities Between BWI and DWI in Texas

Although there are some differences between these two offenses, DWIs and BWIs are very similar in other ways.

For a start, the legal BAC limit for BWI and DWI is identical. If you register 0.08 or higher, you are considered legally intoxicated. Note, however, that if you are drunk or your ability is impaired, you can be arrested and charged with BWI and DWI—even if your BAC registers below 0.08.

The criminal penalties and civil consequences of BWIs and DWIs are also identical. Furthermore, if you received a conviction for one, it can be used against you in a future charge for the other. For example, a BWI conviction will remain on your record and can be used to elevate a future DWI charge. 

Texas’ Legal Penalties for BWI and DWI

The penalties for BWI and DWI depend on the severity of the crime committed. For example, if someone is seriously injured as a result of your actions, there are children involved, or if you have previous DWI or BWI convictions on your record, you will face harsher punishments.

 Additionally, the consequences of DWIs and BWIs increase in severity with each subsequent offense.

First offense (Class B misdemeanor)

• A fine of up to $2,000
• Up to 180 days in county jail
• Driver’s license suspension for up to one year

Second offense (Class A misdemeanor)

• A fine of up to $4,000
• Up to 1 year in jail
• Driver’s license suspension for up to two years
  

Third offense and Intoxication Assault (Third-degree felony)

• A fine of up to $10,000
• Between two and ten years in prison
• Driver’s license suspension for up to two years

Intoxication Manslaughter (Second-degree felony)

• A fine of up to $10,000
• Between two and 20 years in prison
• Driver’s license suspension for up to two years

Child Passenger (State jail felony)

• A fine of up to $10,000
• Between 180 days and two years in state jail
• Driver’s license suspension for up to 180 days

Can a Driver’s License Be Revoked for a BWI?  

Whether you are stopped for a DWI or a BWI, two circumstances can trigger an administrative process known as the Administrative License Revocation (ALR) program, which—if unchallenged—will lead to a suspension of your driving privileges. Additionally, a conviction for BWI can also come with a court-ordered suspension of your driver’s license as a criminal penalty.

Implied Consent

Under Texas’ implied consent law, anyone who accepts a driver’s license automatically consents to DWI blood and breath tests. You still have the right to refuse to submit to a BAC test, but doing so will automatically result in a suspension of your driver’s license through the ALR program.

Failed BAC Test

If you do submit to chemical testing and the results show that you have a BAC of 0.08 or more, this will also trigger a license suspension through the ALR program.

Your license will be suspended for up to one year for a first-time DWI or BWI offense. For a second or subsequent offense, your license will be suspended for up to two years. In either case, your license will not be immediately suspended when you get arrested. Instead, you will be handed a notice of suspension, and have 15 days (from the date of your arrest) to request an ALR hearing, where you can challenge the suspension with the help of a skilled defense attorney.

If you fail to request an ALR hearing before the 15 days are up, your license will be suspended 40 days after you receive your notice of suspension.

The Best Strategy for Challenging a BWI/DWI in Texas

BWI and DWI criminal charges are daunting. The process of the arrest, combined with thoughts of how a conviction may irrevocably impact your future can leave you in a state of fear and anxiety. That’s why it’s so important to remember that charges do not always lead to a conviction.

If you are facing DWI or BWI charges, the first thing you should do is contact a skilled criminal defense attorney with experience in DWI and BWI cases. Find a lawyer you can trust and discuss your case openly and honestly with them so they can create a defense strategy tailored to your individual circumstances.

Your lawyer will carefully study the details of your case, including your arrest. If they find that your arrest was not legal—for example, the police officer did not have sufficient reasonable suspicion to stop your vehicle, or probable cause to arrest you (on a boat or land), they could use this to defend your rights.

Your lawyer may also look into the details of any field sobriety tests you’ve submitted to. It can be argued that the conditions on the road, including the weather and noise from cars, could have contributed to your lack of ability to perform well. Moreover, field sobriety tests are never as reliable on the water, where prolonged exposure to the sun, the wind, and external conditions can affect your appearance as well as your performance.

Every case is unique, and your defense strategy may look very different from the examples described above. Contact Michael & Associates today to book a free case review, and together we’ll build a defense case that’s tailored to your needs.