DWI and DUI are often used interchangeably, but the two are distinct when it comes to Texas drunk driving laws. In this article, we’ll look at DWI vs. DUI closely, but the most important thing to remember is that DUI is reserved for those under the age of 21, whereas both minors and adults can be charged with DWI.

Understanding DWI (Driving While Intoxicated)

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 an alcohol concentration of 0.08 or more

Note that 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.

Understanding DUI (Driving Under the Influence)

Texas has a zero-tolerance law 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 adult 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.

Penalty differences in DWIs vs. DUIs

DWI and DUI charges should never be taken lightly. A conviction for either offense can have severe, long-lasting consequences. The penalties get harsher with subsequent offenses, and more serious crimes—such as intoxication assault—carry more severe punishments. Let’s take a look at the penalties for each type of offense.

Note: a minor charged with DUI can also receive DWI charges. 

Penalties for DWI (Including DWI by a Minor – 17 to 21 years of age)

Assuming no aggravating factors exist, a first-time DWI is charged as a Class B misdemeanor. A conviction would result in the following penalties:

• A fine of up to $2,000
• Between three and 180 days in jail
• Driver license suspension for 90 to 365 days

A second DWI offense is considered a Class A misdemeanor—just one step below a felony. Penalties include:

• A fine of up to $4,000
• Between 30 days and one year in jail
• Driver license suspension for 180 days to two years

A third or subsequent DWI offense would be treated as a third-degree felony. Fines include:

• A fine of up to $10,000
• Between two and ten years in prison
• Driver license suspension for 180 days to two year

Intoxication Assault is always treated as a felony of the third degree, regardless of whether it is a first or subsequent offense. Similarly, Intoxication Manslaughter would result in a felony of the second degree.

The penalties outlined above do not include state fines or other collateral consequences of a DWI conviction.

Penalties for DUI by a Minor – Under 17 years of age

For a minor younger than 17 years old, the penalties for Driving Under the Influence of Alcohol are as follows:

• 1st offense is a Class C misdemeanor. Penalties include a fine of up to $500, 20 – 40 hours of community service, driver’s license suspension for 60 – 180 days, and attendance in an Alcohol Awareness Course.
• 2nd offense is a Class C misdemeanor. Penalties include a fine of up to $500, 40 – 60 hours of community service, driver’s license suspension for 120 days to 2 years, and attendance in an Alcohol Awareness Course.
• 3rd offense is considered Delinquent Conduct by a Minor, which includes a fine of up to $500, 40–60 hours of community service, and a driver’s license suspension for 180 days to 2 years.

Collateral Consequences of DWIs and DUIs

Aside from the criminal consequences of a DWI or DUI conviction, there are a host of collateral consequences to consider.

Both DWI and DUI convictions remain on your record permanently. They will show up whenever someone runs a background check on you and may make it difficult to secure employment—especially if your chosen career involves handling machinery or driving a company vehicle. DWIs can also complicate college admission, prevent you from obtaining certain professional licenses, and even stop you from getting a loan.

You’re also likely to face some period of driver’s license suspension—with the length varying depending on the severity of your crime and the circumstances of your case. The criminal penalties set out above do not include other financial hits, too, like state fines that can range between $2,000 and $6,000—this is typically decided upon sentencing.

Is It Possible to Face a DWI or DUI Charge Without 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.

If you are stumbling towards your vehicle and remotely unlock the doors, this may be enough for a police officer to arrest you. Similarly, if you are sitting in the driver’s seat and the key is in the ignition, or you switch your vehicle on for warmth or music, you can still be arrested for DWI.

Furthermore, if you are physically near your vehicle when the police arrive, and they can establish (from eye-witnesses, for example) that you recently operated the vehicle, this may be enough to arrest you.

DWIs where the vehicle is parked commonly occur when, after drinking, a person sits in their car while waiting for a ride. Unfortunately, just having your keys in the ignition is enough for an officer to charge you.

Best Defense Strategies to Get DWI or DUI Dismissed

While getting arrested for drunk driving is frightening, it is vital to remember that charges do not automatically equal a conviction. With the help of a skilled DWI attorney, you may be able to get DWI and DUI charges against you dismissed. There are several strategies your lawyer can use depending on the circumstances of your case and the evidence that’s being used against you.

Some of the most common strategies used to beat DWI charges include challenging the conditions of your arrest.

• Lack of reasonable suspicion: Your lawyer 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, the case can be 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.
• Improper field sobriety testing: There are many reasons a person could fail field sobriety tests despite not being drunk. A skilled attorney will study all the evidence and reports to catch inconsistencies.

The above list is not conclusive. The circumstances of your arrest may allow for strategies that are unique and tailored to your case, which is why it’s so important to speak to a lawyer. Even if your case is not dismissed, an experienced criminal defense lawyer can fight for a better outcome for you.

Hire Experienced Texas DWI and DUI Lawyer

When it comes to DWI and DUI charges, it’s always worth fighting against them. But you’ll need the help of a DWI attorney with a track record of success.

Don’t settle for cheap! If you—or someone you care about—are facing DWI charges, remember that a conviction can stay with you for life. Worst still, a conviction now can elevate a future DWI—even if it is 20 years (or more) in the future. DWIs typically remain on your record forever.

It may be tempting, but hiring a lawyer simply because they are cheap can result in higher costs in the long run—not just in legal fees but also in criminal penalties.

Here at Michael & Associates, we know how important it is to find the right lawyer to work with. That’s why we offer a free case review. Get yours today!