Anyone driving in Texas needs to understand the state's laws making it a crime to operate a motor vehicle while intoxicated, as well as knowing the penalties a driver might incur if convicted of driving while impaired (DWI). Texas laws set out severe sanctions for both alcohol DWI offenses and drug DWI offenses.
DWI Laws in Texas
The drunk driving laws in Texas are found in the Texas Penal Code Sections 49.01 and following. Texas Penal Code Section 49.04 makes it illegal for anyone to operate a motor vehicle on public roads in Texas while they are intoxicated. While many associate this law with consuming alcohol to the point of being drunk and then getting behind the wheel, the actual terms of the law do not require that a driver be falling-down drunk, nor that they consume alcohol at all.
Intoxication is defined in the statute in two ways: First, drivers are judged intoxicated if they do not have the normal use of their mental or physical faculties because of consumption of alcohol and/or a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance. Second, the driver is intoxicated if they have an blood alcohol concentration (BAC) of 0.08 percent or higher. This applies only to alcohol because there is no similar legal limit for drugs. This is called a "per se" DWI.
Impairment of Faculties
The first type of intoxication in the statute occurs if a driver's faculties are impaired to the extent that they are under the influence of alcohol or drugs. There is no simple test for this type of intoxication. A police officer makes the decision to arrest someone for a DWI by observing their behavior when driving, as well as through field sobriety tests when they get out of their car after being stopped. They don't have to be high as a kite or falling down drunk – sleepiness, dizziness, or loss of balance or coordination is sufficient.
The prosecutor charging the case will need to introduce this evidence at trial and must convince a jury of the driver's impairment. A chemical test can identify alcohol and/or drugs in the driver's system.
Drugs Known to Cause Impairment
It is a mistake to think that only illegal drugs can occasion a DWI in Texas. Although being under the influence of illegal drugs like heroin or meth can be grounds for a DWI, it is also possible to get a drug DWI by using perfectly legal drugs. Prescription medications are perhaps the most common drugs involved in drug DWI cases in Texas, including:
A driver can also be found to be impaired by use of over-the-counter medications including cold medicine, allergy medication and even Tylenol PM. Under Texas DWI laws, a DWI based on Tylenol carries the same penalty as a DWI based on heroin.
Per Se DWI in Texas
The per se DWI is the basis for what people call the legal limit. That's because this type of intoxication is based on drinking a particular amount of alcohol, that is, enough alcohol to raise the person's blood or breath alcohol content (BAC) to 0.08 percent or higher. This is not a set number of drinks, since a person's blood alcohol level depends on several factors in addition to the number of drinks imbibed.
The person's height, weight, sex, age and the food and/or water they consumed all contribute to their blood alcohol content. A 100-pound woman, for example, will usually have a higher BAC than a 100-pound man, even if they have had the same amount of drinks. Obviously, the type of alcoholic drink also plays a role, since light beer contains less alcohol than whiskey. And how quickly the drinks were consumed also is important. Three drinks consumed in half an hour will have more impact on the person's BAC than four drinks consumed over an afternoon.
A DWI based on the person's BAC is called a per se DWI. The words "per se" mean in and of itself. When the results of chemical testing show that a person's BAC is 0.08 percent or higher, that is sufficient evidence of intoxication in and of itself. The prosecutor need not produce any additional evidence of impairment.
Chemical Testing in Texas
In Texas, drivers are required under the law to accept chemical testing if they are arrested for a DWI. The most common form of testing for alcohol is the breathalyzer test. The driver is asked to blow a deep breath into the breathalyzer, which analyzes the breath alcohol concentration. The blood test is most commonly used for someone suspected of a drug DWI.
Although a blood test cannot determine whether a person's driving is impaired by drugs, it can identify the type of drugs in their system and generally the amount. A urine test is occasionally used.
A driver who declines to take a chemical test is subject to penalties. This is an offense termed refusal. The police officer, faced with a refusal, must specifically advise the driver of the penalties they face for refusal and ask them again if they will submit to the test. A first offense refusal can result in an administrative suspension of the person's license for 180 days. A second offense can result in a two-year suspension.
Priors for a DWI
The penalties for a conviction for driving while intoxicated vary greatly depending on the individual's prior driving record. A first offense has the most lenient punishment. A second offense carries a more severe punishment than a first offense but a less severe punishment than a third or fourth offense. The more prior offenses, the greater the punishment for the current offense. But what exactly classifies as a prior?
It will surprise no one to hear that an earlier DWI conviction acts as a prior for a current DWI. But that is just the beginning. Texas also makes it a crime to operate a boat or fly an airplane while intoxicated, and also to operate or even to set up an amusement park ride.
A conviction of any of these offenses will also be a prior for a current DWI. Note that in Texas, it doesn't matter how long ago the prior has occurred. Some states have a five-year or 10-year cutoff, but Texas does not. Prior DWI convictions that occurred 10, 15 or 20 years ago count just the same.
Penalties for Simple DWIs
DWIs without any aggravating factors are termed simple DWIs. The penalties for simple DWIs vary depending on how many priors a driver has on their record. DWI penalties can include fines, jail or prison time, probation, a period of license suspension, surcharges to prevent revocation of license, a mandatory period of DWI school and the mandatory use of an ignition interlock device (IID) for a certain period.
First DWI: A driver's first DWI and second DWI are both misdemeanors, the less serious type of crime in Texas that carries a maximum imprisonment period of up to a year in county jail. Punishment for a first offense (a Class B misdemeanor) includes a fine of up to $2,000, a jail sentence of between three days and 180 days, and a license suspension of up to 12 months, plus a surcharge of $3,000 to prevent a license revocation.
Second DWI: A second DWI is a Class A misdemeanor. It carries a maximum fine of $4,500, maximum imprisonment of a year in county jail and a license suspension of up to two years. The court is likely to also require the driver to attend DWI school and install an IID on every vehicle they own or regularly drive during their supervised probation or if they received a hardship license that allows them to drive to work or school while their license is suspended. This is equally true of third and fourth offenses.
Third DWI: A driver arrested for a third offense for DWI faces felony charges, the more serious type of crime in Texas. Both the penalties and possible imprisonment time shoot up. If convicted, the driver faces a fine of up to $10,000 and up to 10 years of imprisonment as well as a two-year driver's license suspension. A felony conviction of any kind means that the person will lose their right to own a firearm and to enter into various jobs or professions.
Fourth DWI: A fourth offense is also a felony charge. Conviction can bring a penalty of $20,000 and 20 years in prison. License suspension is generally for two years, and the driver will be assessed an expensive surcharge to prevent a license revocation.
Aggravating Circumstances DWI
The penalties described are for simple DWIs that occur without any aggravating factors or circumstances. But even a first-time offense can turn into a much more serious matter if one or more of these circumstances are present:
If there is an open container of alcohol in the vehicle, this constitutes a misdemeanor in and of itself. For someone stopped for a DWI, an open container can increase the fines and potential jail time.
If a driver is stopped for a DWI and is found to have a BAC of 0.15 percent or higher, the fines and the maximum jail time increase. For a first offense, the fine can be $6,000 and jail time up to a year.
DWIs Affecting Other Persons
If a person is stopped for a DWI and there is a child passenger under the age of 15 in the car, the matter becomes a felony. Punishment is between 180 days and two years in prison and a fine of $20,000.
If a DWI driver causes serious injury to another person because of driving while impaired, it is the felony crime of intoxication assault. The penalty can be between two years and 10 years in prison and a fine of up to $10,000. If the injured person dies, it is charged as intoxication manslaughter, and potential jail time increases to 20 years.
The crime is even more serious – a first-degree felony – if the person whose death the driver caused was a peace officer, a firefighter or emergency personnel on active duty.
Zero Tolerance Law in Texas
Texas has enacted a zero tolerance law to combat underage drinking and driving. The law makes it an offense for a driver under the age of 21 to drive with any measurable alcohol in their system. That is, a young driver is guilty of violating the zero tolerance law if they are found to have 0.01 percent or higher BAC on a chemical test. This is a violation of the driving-under-the-influence laws in Texas and will result in a license suspension, a fine and sometimes mandatory attendance at DWI school.
If the young driver tests to a BAC of 0.08 percent or higher, they can be charged with a regular DWI. The penalties for this kind of per se DWI are the same for those under the age of 21 as for older adults.
- Texas Penal Code: Section 49.04 Driving While Intoxicated
- FindLaw: Texas DWI Laws
- Schneider Law: Charged With a First Offense DWI in Texas? What You Need to Know
- Texas DOT: Driving Under the Influence
- Texas DWI Law: Penalties for DWI in Texas:
- DUI Process: Texas DWI Laws Overview
- Houston DWI Lawyer: Penalties for DWI
- DWI Texas: DWI Drugs
- Texas Trial Attorney: Fourth DWI
- R.B. Isenberg Law: What Is the Zero Tolerance Law in Texas?
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.