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DWI: Driving While Intoxicated

You commit the offense of Driving While Intoxicated (“DWI“) in Texas if you are intoxicated while operating a motor vehicle in a public place. While this seems simple, DWI law is actually complicated and constantly evolving. The changing case law and scientific protocols makes the DWI offense the most complicated misdemeanor to defend.

The offense of Driving While Intoxicated is closely related to the offense of Driving Under the Influence, which only applies to people under 21, and the other intoxication offenses such as Intoxication Assault and DWI with Child. Learn about the other intoxication offenses

Have you been charged with DWI? Call criminal defense lawyer Paul Saputo at (888) 239-9305.

The primary elements of the DWI offense are 1) intoxication, 2) operation 3) motor vehicle and 4) public place. The state’s attorneys must prove each of those elements in order to obtain a DWI conviction. The most commonly contested element of the DWI offense is intoxication. This is because it is generally easy for the state’s attorneys to prove that you were driving a motor vehicle in a public place. Sometimes “operation” and “public place” issues come up too, but usually the case boils down to whether you were intoxicated. Learn more about the definition of “Intoxicated” below.

What is the definition of “intoxicated” in Texas?

In Texas, it is illegal to operate a motor vehicle while “intoxicated.” Intoxicated means any of the following:1

  • a) not having the normal us of your mental faculties by reason of the introduction of any substance into your body OR
  • b) not having the normal use of your physical faculties by reason of the introduction of any substance into your body OR
  • c) having a blood alcohol concentration (BAC) greater than a 0.08

It is important to note that these conditions have the “OR” conjunction in between them. What this means is that the state attorneys only have to prove one of them to win a conviction. This is one reason why DWI defense is challenging for criminal defense attorneys – we have to protect you against all three of these accusations at the same time.

In addition, note that the state does not have to prove that you were intoxicated with alcohol. The Texas Penal Code says that you can be intoxicated with alcohol or any other substance:

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.

This means that you can get convicted of a DWI or any other drunk driving offense even if the substance is a prescribed drug, an over the counter drug or a legal drug. Learn more about the definition of Intoxication

The “basic” DWI offense only requires the state attorneys to prove that you operated a motor vehicle in a public place while intoxicated However, other drunk driving offenses require additional elements. Those offenses include Intoxication Assault, Intoxication Manslaughter and DWI with Child.

What are the penalties for DWI? What happens if I am convicted of DWI?

The penalties for any DWI conviction can be severe, and the punishment for a misdemeanor DWI conviction is probably the most serious of any misdemeanor offense in Texas. There is a minimum 72 hour jail sentence, even for first convictions (although this may be probated for simple DWI 1st), and the punishment goes up from there to a maximum of 1 year in jail for some DWI misdemeanor convictions and mandatory prison time for DWI 3rd or more. If you are placed on probation, other possibilities for sentencing include a SCRAM ankle monitor, a Soberlink device and electronic home monitoring. You will face to pay probation fees to the county, and you will have to attend classes like a DWI education course, a Victim Impact Panel by MADD. There will likely be community service involved, you will have to pay court costs and other fines and penalties, and you may be required to have an interlock device (also known as a deep lung device) installed on your car that will prevent your car from starting unless you blow into it. Learn more about typical DWI Probation Conditions

The non-criminal penalties can be just as bad. For instance, your license may be suspended, you will be facing a $1000 per year surcharge on your license for three years, and your insurance rate may triple if your insurance company finds out about the charge.

Standard DWI 1st Penalties

A standard first offense DWI is classified as a Class B Misdemeanor. The range of punishment for all Class B Misdemeanors is up to 180 days in county jail and up to a $2000 fine. However, there is a minimum term of confinement of 72 hours for all DWI offenses.2 There are also numerous ways that the state’s attorney might enhance the base DWI charge, and the penalties for second and subsequent DWIs are steeper.

If it is your first DWI offense, the state might enhance the charge with a BAC > .15 allegation, meaning that your blood alcohol content is alleged to have been over .15%. This enhancement would make the DWI a Class A Misdemeanor,3 the highest grade of misdemeanor. The charge could also be enhanced with an open container allegation4. Technically a separate criminal offense, DWI with Child Passenger is a state jail felony that requires the state’s attorneys to prove that at the time you committed DWI you had a child passenger younger than 15 years old5. Learn more about the range of punishment for state jail felonies

In addition, there are significant real-world penalties that are not necessarily considered “criminal” or outlined in the state law. For instance, your driver’s license may be suspended and you will have to pay a reinstatement fee and annual surcharges starting at $1,000 per year. If you are on probation, you will not be allowed to any drink alcohol, you will have a probation officer that will be able to restrict your travel, you may be required to maintain an ignition interlock device (requiring you to blow into it before you start your car) and other monitoring devices like an ankle bracelet, you will have to attend probation appointments causing you to miss work and family events. In addition to the embarrassment, hassle and expense, there are numerous other penalties.

Learn more about the consequences of DWI convictions

DWI 2nd & DWI 3rd or more Penalties

If you are convicted of DWI 2nd, you will be subject to the penalty enhancements in Section 49.09 of the Texas Penal Code. These include a minimum term of confinement of 30 days6 (although all but 72 hours of this may be probated7) and mandatory interlock installation on your vehicle8. In addition, the offense is considered a Class A Misdemeanor.9

If the state can show that you have had two prior DWI charges any time in the past (and from anywhere in the country), the state attorneys may prosecute you for Felony DWI,10 with mandatory jail time and very long probation sentences. You can also be convicted with Felony DWI if you had one previous Intoxication Manslaughter conviction11. These Felony DWI convictions are third degree felonies.12

If you are convicted of any felony, you will lose your right to vote and own a gun, in addition to many other significant problems that come with the label of being a “felon.” If you are charged with Felony DWI, do not plead guilty. There are many ways to fight a Felony DWI charge, including challenging the underlying convictions used to enhance the crime. Sometimes convictions in other states would not be considered DWI convictions under Texas state law. Make sure that you discuss this with your DWI lawyer.

Can I get a DWI conviction off my record through an expunction, expungement or judicial clemency?

In Texas, if you were convicted of a DWI, you cannot get it off your criminal record. If your DWI charge was ultimately dismissed, then you may be able to get it off your record. Learn more about expunction eligibility

There is not unanimous agreement among Texas courts about whether you can get a DWI charge expunged if the DWI charged was dismissed when you are also convicted of something else that arose out of the charge (like an Obstruction plea). If you are in an arrest-based county, then you will not be able to get the record expunged. This is a developing area of case law, but unfortunately the trend is heading towards an arrest-based system of expunction.

Can they take my driver’s license away?

Generally, if you are arrested for a DWI, your license will be taken by the arresting officer. They will give you a sheet of paper called a DIC-25 that will act as a temporary license. This temporary license will only be good for 40 days unless you timely request and ALR Hearing. At the ALR hearing, a SOAH judge will determine whether your license will be returned to you or whether your license will be suspended. If you are not a Texas resident, your privilege to receive a driver’s license in Texas will be suspended, and they will notify your home state of that status. Typically, DMVs or OMVs in your home state will then suspend your driver’s license or operator’s license in that state. If you fail to request an ALR hearing, then your license will be suspended by default. Learn more about ALR Hearings, SOAH and License Suspensions

What is the legal limit of alcohol in your blood? How can I be charged with a DWI if I am under a .08?

Yes, you can be charged with DWI even though your blood alcohol concentration test result was under a 0.08. This is done through the alternative definition of intoxication found in the Texas DWI statute or through the state’s allegation that your BAC was higher at the time you operated a motor vehicle.

The amount of alcohol in your blood is called your blood alcohol content (“BAC”). The legal limit for your BAC is 0.08%. For many people, it only takes two drinks to be over the legal limit. Some people can be over the limit after only one drink. Your BAC depends on more than just how many drinks you had, however. Your BAC will be different depending on many factors including how long it took you to drink the alcohol, what kind of beverages you drank, how much you had to eat that day (and what kind of food it was), your personal physiology, and many other factors. DWI investigators use blood tests and breath tests to calculate your BAC at a specific point in time, but these tests must be administered properly in order to be accurate.

If your BAC was below the legal limit at the time the police tested you for alcohol, either through a blood test or breath test, and you came in under the legal limit, then you might still be prosecuted for DWI under the theory that at the time you were driving you were over the limit or that your mental or physical faculties were “not normal” even though you were under a 0.08% BAC. This happens more often than many people think. In this type of situation, the state is going to try to prove that your blood alcohol level was declining at the time you were driving. This, however, may very well not be true, and a DWI defense attorney should collect evidence to thoroughly investigate this theory.

What is the difference between DUI and DWI?

The critical difference between DUI and DWI is the age of the accused. DWI laws apply to everyone, while DUI laws apply only to people under 21.13 You cannot be convicted of DUI if you are over 21 years old. Also, the DUI offense only requires the smallest trace of alcohol to be in your system. Even a 0.01% BAC will subject you to being convicted for DUI. The Texas DUI law is found in the Texas Alcoholic Beverage Code, Title 4 Sec 106.041.

What is the definition of “motor vehicle” under Texas law?

Not only do the state’s attorneys have to prove you were intoxicated, they also have to prove you were intoxicated while operating a motor vehicle. Motor vehicles are defined as “a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.”14

I refused the breathalyzer test. What happens to me now?

If you refused the breath test, your license will be subject to suspension, pending the results of an ALR Hearing if you timely and successfully request a hearing – important time deadlines apply. If you fail to request the hearing properly, or you lose the hearing, your license will be suspended for 180 days to up to two years, depending on the circumstances. Learn more about ALR Hearings and how they affect your license and your DWI Defense strategy


I passed the field sobriety tests, why did I get arrested?

There is no way for you to tell whether you passed all the field sobriety tests. The horizontal gaze nystagmus (HGN) test requires the officer to look at the movement in your eyes, and you can’t see what he sees. So at the very least, you will have no way to tell if you passed this test. The police also do not tell you what clues they are looking for when you take the other tests, and they may also lie to you about their thoughts on whether you passed. So if they tell you that you passed and still arrested you, they were likely just lying to you. It’s unfair, we know.

In addition, the police might think you failed when you really didn’t. This happens when they conduct the test wrong.


Legal References:

1Texas Penal Code Section 49.01(2) – “‘Intoxicated’ means: (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.”

2Texas Penal Code 49.04(b). Note, however, that under Texas Code of Criminal Procedure Article 42.12 Section 13(a)(1), the entire term of confinement may be probated unless the offense is punished under 49.09(a) as a DWI 2nd.

3Texas Penal Code 49.04(d)

4Texas Penal Code 49.04(c). A conviction with this enhancement would result in a minimum term of confinement of 6 days, but see footnote 1 above.

5Texas Penal Code 49.045. Learn more about DWI with Child Passenger

6Texas Penal Code 49.09(a)

7Texas Code of Criminal Procedure Article 42.12 Section 13(a)(1)

8Texas Penal Code 49.09(h)

9Texas Penal Code 49.09(a)

10Texas Penal Code 49.09

11Texas Penal Code 49.09(b)(1)

12Texas Penal Code 49.09(b)

13Texas Alcoholic Beverage Code, Title 4 Sec 106.01

14Texas Penal Code 32.34(a), cross-referenced from Texas Penal Code 49.01(3).