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DWI vs. DUI: Understanding Texas Drunk Driving Laws

Ben Michael
  • In Texas, DUI stands for driving under the influence. It applies to minors under the legal drinking age of 21
  • DWI (driving while intoxicated) applies to adults and minors whose blood alcohol concentration exceeds .08
  • There is no minimum BAC requirement for a DUI charge – any sign at all that a minor was consuming alcohol is enough

While our firm routinely handles both DWI and DUI cases, it’s important to understand that in Texas, DWI and DUI are completely different charges with different penalties.

Sometimes, even clients or their family members get confused about the distinctions.

The key difference is that only minors under age 21 will be charged with DUI. Adults and minors with a blood alcohol content of .08 or higher can be charged with DWI. 

Read on for a breakdown of the key differences and similarities.

DWI vs. DUI: Punishments and Consequences of a First Offense

Here is a direct comparison of the charges, requirements, and penalties for a first DUI or DWI offense.

Who can be charged?Anyone with the required blood alcohol content Only people under age 21 will be charged with DUI
ChargeClass B misdemeanorClass C misdemeanor
Minimum blood alcohol content (BAC).08% or higherNo minimum; Texas is a zero-tolerance state
What is the maximum fee?$2,000$500
Is jail time possible?Yes, three to 180 daysNo
Is it possible to lose my driver’s licenseYes, for up to a yearYes, for 60 to 180 days
Will I have to do community service?Not if you’re convicted, but you might as a condition of a plea bargainYes, up to 40 hours 
Will my conviction show up on a background check?Yes, unless your record is sealed or expungedYes, unless your record is sealed or expunged
Do I have to be driving to be charged with DWI/DUI? No, adults can be charged with DWI as long as police can establish reasonable suspicion that they have been operating the vehicleNo, you can be charged with DUI if police suspect you’ve been operating the vehicle (for example, sitting in the car with the engine running)
Can I be arrested even if I don’t appear to be intoxicated?Yes, this is why it’s so important to have good legal representation. If a police officer has any suspicion of impaired reaction, you can be arrestedYes, police only need to establish probable cause that you’ve consumed alcohol or drugs
Will I have to attend an alcohol awareness class?Yes, a 12-hour DWI education courseYes
Will I need an attorney?Yes, a DWI conviction will have long-term implicationsYes, a DUI conviction can have lifelong ramifications
Will I be required to have an ignition interlock device?Not always: a judge will only order an IID if specific criteria are metOnly if you require an Occupational License
Will my auto insurance cost increase? Yes, your rates could increase by 64%, according to insurance.comRates for 18-year-olds go increase by 50% on average after a DUI
Other noteworthy differencesA minor with a blood alcohol content of .08 or higher can be charged with both DUI and DWIThe above are penalties for young adults under the age of 17. DUI penalties for drivers between the ages of 17 to 21 are slightly different because they will be charged as adults.

As you can see, a DWI charge is worse, but only because the penalties are more severe. Both DUIs and DWI convictions can stay on your record forever and have long-term consequences on college admissions, your career path, and even whether you can get a loan or rent an apartment. 

It’s important to note that even if you’re a minor, you can be charged with DWI if your blood alcohol content is high enough.

DUI is a Zero-Tolerance Law that Applies Only to Minors

Texas has a zero-tolerance policy for minors committing alcohol-related offenses. In Texas, a person under the age of 21 may not purchase, attempt to purchase, consume, or possess any alcoholic beverages.

Here’s what the Texas Alcoholic Beverage Code defines as Driving Under the Influence:

DRIVING OR OPERATING WATERCRAFT UNDER THE INFLUENCE OF ALCOHOL BY MINOR.  (a)  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.

Alcoholic Beverage Code Sec. 106.041

The critical choice of words to note in the above section is “…any detectable amount of alcohol…” In other words, you don’t have to be drunk to be charged with a DUI. If you are stopped by law enforcement, and there is evidence that you’ve consumed any alcohol, you can be charged with DUI.

Furthermore, minors can also be charged for DWI and punished as an adults if it is found that the threshold for “intoxicated” as laid out in Texas Penal Code § 49.04 has been breached. For example, if they register a BAC of 0.08 or more, have slurred speech, have bloodshot eyes, or fail field sobriety tests.

DWI Requires Obvious Impairment or BAC of .08

Here’s what the Texas Penal Code defines as Driving While Intoxicated:

Sec. 49.04. DRIVING WHILE INTOXICATED.  (a)  A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

The three factors considered in DWIs are whether a person is “intoxicated” as defined in the Texas Penal Code, whether they are “operating” a vehicle, and whether they are in a “public place” while doing so. 

The Texas Penal Code defines “intoxicated” as either one or both of the following: 

  • Not having the normal use of mental or physical faculties as a result of drinking alcohol, taking drugs (legal or otherwise), or a combination of both
  • Having a blood alcohol concentration of 0.08 or more

Although the second definition can be proven with a breathalyzer or blood test, the first definition is subjective. An arresting officer doesn’t have to prove that your BAC is over 0.08 to be able to arrest and charge you with DWI.

The following characteristics and behaviors could be used as circumstantial evidence of drunk driving:

  • Slurred speech
  • Failure to maintain eye contact
  • Confrontational or combative behavior

If you are over the age of 21, drinking a few sips of alcohol before driving is not enough on its own to charge you with a DWI — you must demonstrably appear impaired or have a blood alcohol concentration of 0.08 or more.

Have You Been Charged With DWI or DUI in Texas?

It’s always worth fighting DWI and DUI charges, but you’ll need the help of a DWI attorney with a track record of success.

Don’t settle! If you — or your spouse or child — have been charged with DWI, remember that a conviction can stay with you for life. 

DWI convictions typically remain on your record forever.

And a conviction now could elevate a future DWI — even if it is 20 years (or more) from now. 

A skilled DWI attorney may be able to get DWI and DUI charges against you dismissed. There are several strategies we will use, depending on the circumstances of your case and the evidence that’s being used against you. These can include:

  • Lack of reasonable suspicion: We will study the circumstances of your traffic stop. If the arresting officer did not have reasonable suspicion for pulling you over, then the case can be challenged.
  • Lack of probable cause: If the officer arrests you despite not finding any evidence of drunk driving and you did not appear impaired, we will get your case dropped.
  • Improper Breathalyzer testing: Breathalyzer results are not always accurate. The machines must be calibrated correctly, and the officer must be trained to use them properly. We have a team of experts on staff to challenge your test results if necessary.
  • Improper field sobriety testing: There are many reasons a person could fail field sobriety tests despite not being drunk. We will study all the evidence and reports to catch inconsistencies.

Our No. 1 goal is to get you the best possible outcome. Schedule a free case review today. 

More Questions We’re Commonly Asked about DWI

DWI and DUI convictions in Texas have lasting ramifications. Here are some other questions people commonly ask:

Can I Request Nondisclosure of my DWI Conviction?

In 2017, House Bill 3016 became law, allowing Texans who were convicted of nonviolent criminal crimes the opportunity to petition for an order of nondisclosure.

This means that the court will seal your record, and only certain government employees will be able to see your DWI conviction. Anyone conducting a background check will not be able to see it. 

However, you must meet certain requirements to request the nondisclosure order:

  • It must be your first DWI offense.
  • Your blood alcohol concentration (BAC) must be less than 0.15 percent.
  • You have completed any sentence 
  • You have paid all fines and restitution
  • You have completed the required waiting period
  • You have not been convicted of any other criminal offenses (aside from minor traffic violations)
  • You are not in deferred adjudication for any other criminal offenses 
  • You agree to either wait five years after finishing your sentence or community supervision or to install an ignition interlock device on your vehicle for six months 

Can You Be Charged with DWI or DUI If You Aren’t Driving?

Your vehicle doesn’t have to be in motion for you to get arrested and charged with a DWI or DUI. The Texas Penal Code specifies that you are committing an offense if you are intoxicated “…while operating…” a vehicle — not driving. 

So, what constitutes “operating?”

To put it simply, if you are exerting any control over your vehicle, you are operating it. For example:

  • If you start your vehicle for warmth or music
  • If you’re physically near your vehicle and police can establish that you recently operated it
  • If you’re under the influence and fall asleep in your vehicle with the engine running

Can I Have my DWI Record Expunged in Texas?

Expungement is better than nondisclosure. Instead of having your arrest sealed, it is completely wiped off your record.

However, you can only petition the court for record expungement if you have no past DWI convictions. 

Typically the only records that are eligible to be expunged in Texas are cases in which a conviction was never entered into court record. However, we can review your case and determine whether you may be eligible. Every case is unique, and we will cover all the bases on your behalf. 

Ben Michael

Ben has vast experience in defending criminal cases ranging from DWIs to assault, drug possession, and many more. He has countless criminal charges dismissed and pled down. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.

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