At first glance, driving while intoxicated (DWI) in Texas appears quite similar to the DUI/DWI laws in other states. The law makes it illegal for a person to drive while under the influence of alcohol or drugs as well as to drive with a blood alcohol concentration (BAC) over the legal limit. However, an overview of Texas law shows that the state is actually tougher on DWIs than are many other states, and the laws are more complex than they seem at first glance.
DWI Laws in Texas
The statutes dealing with drunk driving are found in the Texas Penal Code, Title 10, including section 49.04. This law makes it illegal for a person to operate a vehicle in a public place in Texas while intoxicated, which is defined in two ways.
First, intoxicated means "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."
Second, Texas, like many other states, specifies that a driver is presumed intoxicated if they have a blood, breath or urine alcohol concentration of 0.08 percent or higher. This legal level is less – 0.04 percent – for someone holding a commercial license. The limit for those under 21 is any discernible amount.
Administrative Penalties for First DWI Conviction
When a driver is lawfully arrested for a first offense DWI in Texas, the state Department of Motor Vehicles (DMV) imposes administrative penalties. These come into play when the driver either takes a chemical test and fails it, or refuses to take the chemical test.
Texas has an implied consent law. Under Texas DWI law, everyone driving on Texas roads is deemed to have consented to take a chemical test if arrested for a DWI. For example, a driver fails a breathalyzer test that determines their BAC is 0.08 percent or higher. But since failing a chemical test makes it much easier for the prosecutor to convict a driver, many refuse to take the tests.
The implied consent law imposes administrative penalties for both taking and failing a chemical test and also for refusing to take the chemical test. In either case, the arresting officer confiscates the driver's license, and issues a Notice of Suspension. This functions as a temporary driving permit.
Requesting a Hearing for a DWI Charge
The driver can request a hearing within 15 days from the date of the arrest, handled by the State Office of Administrative Hearings. If a driver doesn't request a hearing, their driver's license is suspended for up to 180 days. If a driver does request a hearing, they can continue driving until the hearing is held and the decision becomes final.
Hardship License and IID
As a first-time DWI offender, a driver may be eligible for a hardship or occupational license during their driver license suspension. With this license, an individual can do essential driving, like to and from work, school and medical visits.
To qualify, the driver must install an ignition interlock device (IID) on every vehicle they own or operate. An IID is a type of breathalyzer device that is attached to the car or truck. It prevents the vehicle from starting until the driver blows into the breathalyzer and establishes that they have not been drinking.
Criminal Penalties for First DWI
A first offense DWI in Texas is a Class B misdemeanor. A misdemeanor is the less serious type of crime in this state, but it is still a crime. The penalties for a simple DWI without any aggravating circumstances include a fine of up to $2,000. In addition to the regular fine, Texas imposes a surcharge of $1,000 each year for three years.
The driver will also be required to attend a state-approved DWI school and perform between 24 to 100 hours of community service. The court will impose a jail sentence of at least 72 hours up to 180 days and a license suspension of between 90 days and a year.
Texas also makes boating while intoxicated (BWI) a prior offense for a DWI. That means that if a person has been convicted of a BWI, a subsequent DWI is considered a second offense, not a first one, and more severe sanctions will apply.
Aggravating Factors for First DWI
A first offense DWI in Texas is a Class B misdemeanor, but it can quickly spiral up to a Class A misdemeanor or even a felony if aggravating factors are present. First, if a person stopped for a DWI has an open bottle of alcohol in the car, the minimum jail time for a DWI goes up from three to six days.
Other aggravating circumstances are more serious. If a person is arrested for a DWI and is found to have a BAC of 0.15 percent or higher, the charge goes up to a Class A misdemeanor. The fine for the higher charge can be up to $4,000, and the possible jail sentence goes up to one year. In addition, the driver will have to install IIDs on all vehicles when they do get their license back.
Alternative DWI Crimes
Some offenses that involve drinking or drug use and driving are charged under different Penal Code sections. These usually carry more serious penalties.
If a person arrested for a DWI is carrying a child passenger under the age of 15, even if it is the driver's child, the offense escalates from a Class B misdemeanor to a felony. The crime is termed child endangerment and carries a potential fine of up to $10,000 and 180 days to two years in a state prison.
If another individual is seriously injured or killed as a result of the intoxicated driving, Texas law classifies this as a felony as well. Causing serious injury in Texas is considered intoxication assault, and the driver can be sentenced to between two and 10 years in state prison and a fine of up to $10,000. For killing someone, known as intoxication manslaughter, the jail term can be up to 20 years.
DWIs and Minors
Under the DWI laws, a minor is any person under the age of 21. Specific laws apply to minors and alcohol, since these individuals are not old enough to drink alcohol in Texas. When it comes to a DWI, minors can be arrested if they have any detectable amount of alcohol in their systems.
Unlike adults arrested for DWI offenses, minors do not face jail terms if they are convicted. For a first offense, a minor will face fines of up to $500, probation with community service, loss of driving privileges for up to a year and mandatory DWI school of at least 12 hours. Subsequent offenses carry more serious penalties, and some can include jail time.
Like adults, minors in Texas are deemed to have consented to chemical testing if they are picked up for a DWI. Refusal, for a minor, carries an administrative penalty of a 180-day license suspension.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.