Texas DWI and DUI: Your Road Map to Understanding the Law

Understanding the Critical Differences Between DWI and DUI in Texas

Though often used interchangeably, DWI and DUI in Texas are distinct charges with different consequences based on age and circumstance. Here’s the essential breakdown:

Quick Answer: DWI vs. DUI in Texas

• DWI (Driving While Intoxicated): Applies to drivers 21 and older with a BAC of 0.08% or higher, or with impaired mental/physical faculties due to alcohol or drugs. This is a Class B misdemeanor (Class A if BAC ≥ 0.15%), carrying jail time, fines up to $2,000-$4,000, and license suspension.

• DUI (Driving Under the Influence): Applies to drivers under 21 with any detectable amount of alcohol in their system. This is a Class C misdemeanor with fines up to $500, community service, and license suspension—reflecting Texas’s zero-tolerance policy for underage drinking and driving.

• Key Distinction: DWI requires proof of intoxication (0.08% BAC or impairment); DUI for minors requires only any detectable alcohol, regardless of impairment level.

An arrest in Houston or Harris County triggers two separate processes: a criminal case and an administrative action against your license. Crucially, you have only 15 days from your arrest to request an Administrative License Revocation (ALR) hearing to fight the automatic suspension of your license.

Texas takes these charges seriously. A conviction’s impact goes beyond fines and jail, potentially affecting your job, professional licenses, housing, and international travel. For minors, a DUI can jeopardize college admissions and career prospects.

This guide explains Texas DWI and DUI laws, penalties, legal processes, and defense strategies to protect your future.

I’m Herman Martinez, founder of The Martinez Law Firm. With over 25 years of experience as a former Chief Prosecutor for Harris County and a City of Houston Judge, I’ve handled cases of DWI and DUI in Texas from every angle. I now use that insider knowledge to aggressively defend clients in Houston and Harris County facing these life-altering charges.

The Core Distinction: DWI vs. DUI in Texas Law

When facing a drinking-and-driving charge in Houston, understanding the specific offense is critical. DWI and DUI in Texas are not the same; they are distinct charges under Texas law, with penalties and defenses determined by one key factor: your age.

What is Driving While Intoxicated (DWI) in Texas?

Driving While Intoxicated (DWI) applies to adults 21 and older. A DWI arrest in Harris County means you’re charged under Texas Penal Code Section 49.04 for operating a motor vehicle in a public place while intoxicated.

Texas law defines “intoxicated” in two ways. You are legally intoxicated in Texas if you have a blood alcohol concentration (BAC) of 0.08% or higher. You are also considered intoxicated if you lack the normal use of your mental or physical faculties due to alcohol, drugs, or a combination of substances.

This means an officer’s subjective observation of impairment (slurred speech, stumbling) can lead to a DWI charge, even with a BAC below 0.08% or without a test. Conversely, a BAC of 0.08% or higher is sufficient for a DWI charge, regardless of how you felt or drove.

A first-time DWI is typically a Class B Misdemeanor, but this can be liftd to a Class A Misdemeanor if your BAC was 0.15% or higher. DWI charges can result from impairment by alcohol, illegal drugs, or even prescription medications.

What is Driving Under the Influence (DUI) in Texas?

Driving Under the Influence (DUI) applies exclusively to minors under 21. Reflecting Texas’s zero-tolerance policy, a DUI charge requires only any detectable amount of alcohol in the minor’s system. Impairment is not a factor; even a trace of alcohol is enough for a DUI charge.

This means a 19-year-old with a BAC that is legal for an adult would still face criminal charges. The legal threshold for minors is effectively zero.

DUI charges are governed by the Texas Alcoholic Beverage Code and are classified as Class C Misdemeanors for a first offense. While less severe than an adult DWI, the consequences can still be devastating for a young person’s future.

Understanding the Legal Classifications

To make the distinction between dwi and dui in texas crystal clear, here’s how the charges compare:

Characteristic	DWI (Adults)	DUI (Minors)
Legal Age	21 years or older	Under 21 years
BAC Threshold	0.08% or higher, OR loss of normal faculties due to impairment	Any detectable amount of alcohol
Governing Statute	Texas Penal Code, Chapter 49, Section 49.04	Texas Alcoholic Beverage Code, Section 106.041
Offense Class	Typically Class B Misdemeanor (first offense)	Class C Misdemeanor (first offense)

A minor can face both charges. If an underage driver has a BAC of 0.08% or higher or is clearly impaired, Harris County prosecutors can charge them with the more serious adult DWI. The state will typically pursue the charge with the harsher penalties.

Navigating the Penalties for DWI and DUI in Texas

Penalties for DWI and DUI in Texas are harsh by design to deter impaired driving. A conviction in Houston or Harris County can disrupt your life for years. The local courts, including the specialized Harris County DWI Court Program, take these offenses extremely seriously, especially for repeat offenders.

Penalties for a First-Time DWI Offense

A first time DWI offense for an adult is a Class B Misdemeanor with severe consequences. Penalties include:

• Fines: Up to $2,000.
• State Fees: Annual surcharges of $1,000 to $2,000 for three years to keep your license.
• Jail Time: 3 to 180 days, though probation is often possible.
• License Suspension: 90 days to one year.
• Ignition Interlock Device (IID): Often mandatory, requiring you to pass a breath test to start your car.
• Education: Mandatory completion of a DWI education program.

Penalties for Subsequent DWI Offenses

Penalties escalate sharply for repeat offenders.

• Second DWI Offense: A Class A Misdemeanor with fines up to $4,000, jail time from 1 month to 1 year, and a license suspension of up to 2 years.
• Third DWI Offense: A Third-Degree Felony, carrying a $10,000 fine, 2 to 10 years in state prison, and a license suspension up to 2 years. A felony conviction results in a permanent record and the loss of rights like voting and owning firearms.

Penalties for an Underage DUI Offense

A minor’s first DUI charge is a Class C Misdemeanor, but the penalties can still impact a young person’s future. A first offense includes:

• A fine up to $500.
• A 60-day driver’s license suspension.
• 20 to 40 hours of community service.
• Mandatory alcohol awareness classes.

Failure to complete the class extends the suspension by 180 days. Importantly, if a minor’s BAC is 0.08% or higher, they can be charged with an adult DWI and face much harsher penalties, including jail time.

Improved Penalties and Aggravating Factors

Aggravating factors can significantly increase penalties for a DWI and DUI in Texas charge:

• DWI with a Child Passenger: Driving intoxicated with a child under 15 is a State Jail Felony, with up to a $10,000 fine and 2 years in jail.
• High BAC (0.15% or higher): A first offense is liftd to a Class A misdemeanor, with fines up to $4,000 and jail time up to one year.
• Open Container: Adds a mandatory minimum of 6 days in jail to a DWI charge.
• Intoxication Assault: Causing serious bodily injury is a Third-Degree Felony (2-10 years in prison).
• Intoxication Manslaughter: Causing a death is a Second-Degree Felony (2-20 years in prison).

These improved charges are life-altering and require an immediate and aggressive defense.

The Legal Aftermath: From Arrest to License Reinstatement

An arrest for DWI and DUI in Texas initiates two separate legal battles: a criminal case and an administrative process to suspend your driver’s license. Understanding both is key to protecting your driving privileges.

Refusing a Breathalyzer and the ALR Process

Under Texas’s “implied consent” law, driving on a public road means you have consented to a breath or blood test if suspected of DWI. Refusing a test has immediate consequences: an automatic 180-day license suspension for a first refusal (2 years for a subsequent one). In Harris County, officers often get warrants for a forced blood draw if you refuse, so refusal may not prevent a test.

The Administrative License Revocation (ALR) process is a civil action by the Texas Department of Public Safety, separate from your criminal case, to suspend your license. You have only 15 calendar days from your arrest to request an ALR hearing. Missing this deadline results in an automatic suspension.

An ALR hearing is a crucial first opportunity to challenge the evidence, cross-examine the officer, and potentially save your license. A win here can also strengthen your criminal defense.

Ignition Interlock Devices and SR-22 Insurance

An ignition interlock device (IID) is a car breathalyzer that prevents your vehicle from starting if it detects alcohol. An IID may be required as a condition of bond, probation, or to get an occupational license for essential driving during a suspension. It’s often mandatory for repeat offenders or those with a BAC of 0.15% or higher. The user bears the cost of installation (around $70-$100) and monthly monitoring (around $60-$90).

SR-22 insurance is a certificate your insurer files with the state to prove you have liability coverage after a DWI. It’s typically required for two years post-conviction. While not insurance itself, the SR-22 requirement labels you a high-risk driver, causing your insurance premiums to increase significantly.

Between the IID, increased insurance costs, and state surcharges, the financial burden of a DWI and DUI in Texas conviction extends far beyond the initial court fine. Fighting the charges from day one, starting with the ALR hearing, is critical.

Building a Defense and Mitigating Long-Term Consequences

Both a DWI and DUI in Texas charge can threaten your future, but it is defensible. An experienced Houston attorney can challenge the evidence, protect your rights, and work to minimize or dismiss the charges.

Common Defense Strategies for DWI and DUI in Texas

Effective defense strategies in Houston courts involve scrutinizing every detail of the arrest for weaknesses in the prosecution’s case. Common defenses include:

• Challenging the Traffic Stop: If the officer lacked reasonable suspicion for the stop, all subsequent evidence may be inadmissible.
• Questioning Field Sobriety Tests: These tests are subjective and can be affected by medical conditions, fatigue, or poor instructions, making them unreliable.
• Contesting Breathalyzer and Blood Test Accuracy: We investigate if breathalyzers were properly calibrated and if blood tests followed strict collection and storage protocols. Medical issues can also cause false high readings.
• Using the Rising BAC Defense: Your BAC may have been below the legal limit while driving but risen by the time of testing.
• Identifying Procedural Errors: Any failure by law enforcement to follow proper protocol, such as not reading your rights, can be used to your advantage.

My experience as a former Harris County Chief Prosecutor provides insider knowledge on how to exploit these weaknesses.

How Long Does a DWI Stay on Your Record?

A DWI conviction in Texas is permanent and can affect your employment, professional licenses (for doctors, nurses, lawyers, etc.), and housing applications for life.

However, in some cases, it may be possible to clear your record. An expunction can erase an arrest if your case was dismissed or you were acquitted. An order of nondisclosure can seal the record from public view if you successfully completed deferred adjudication for certain first-time offenses. These options are complex, making it vital to fight the charge from the start to avoid a conviction altogether.

Related Offenses and Other Consequences

A conviction for both a DWI and DUI in Texas has other far-reaching consequences:

• Boating While Intoxicated (BWI): Carries penalties similar to DWI.
• Firearm Ownership: A misdemeanor DWI conviction generally doesn’t affect firearm rights, but a felony DWI conviction results in a permanent ban on owning firearms.
• Open Container: Having an open container of alcohol during a DWI arrest adds a mandatory six-day jail sentence. Learn more about Texas open container laws.
• International Travel: Countries like Canada may deny entry to individuals with a DWI conviction.

Navigating the Houston legal system requires an attorney with insider knowledge. At The Martinez Law Firm, we use our prosecutorial experience to build the strongest defense for your case.

Frequently Asked Questions about DWI and DUI in Houston

If you’re facing charges of DWI and DUI in Texas, you likely have urgent questions about what comes next. These are some of the most common concerns we hear from our Houston clients.

Can a minor be charged with both a DWI and a DUI in Texas?

Yes. A minor under 21 with any detectable alcohol can be charged with DUI. If that same minor has a BAC of 0.08% or higher or is otherwise impaired, they can also be charged with the more serious adult DWI. In Harris County, prosecutors will typically pursue the DWI charge because it carries much harsher penalties. This makes experienced legal representation essential for any minor charged with a drinking and driving offense.

How does a DWI or DUI conviction affect firearm ownership rights in Texas?

The impact depends on the conviction level. A misdemeanor DWI conviction generally does not affect your firearm rights in Texas. However, a felony DWI conviction leads to the permanent loss of your right to own or possess firearms. This includes a third DWI, intoxication assault, or DWI with a child passenger. Avoiding a felony conviction is critical to protecting your Second Amendment rights.

Can an attorney get a DWI charge dismissed in Houston?

Yes. While no outcome is guaranteed, an experienced Houston DWI attorney can often get charges dismissed or reduced. A dismissal can be achieved by proving issues with the state’s case, such as:

• An illegal traffic stop without probable cause.
• Inaccurate or improperly administered breathalyzer and blood tests.
• Unreliable field sobriety test results.
• Police procedural errors or rights violations.

My experience as a former prosecutor and judge in Harris County gives me unique insight into finding these case-destroying flaws and securing dismissals for my clients.

DWI/DUI Next Steps

A DWI or DUI charge in Texas is a critical event that puts your freedom, career, and future at risk. The legal system in Houston and Harris County is tough on impaired driving, and prosecutors are aggressive. From the moment of your arrest, the clock is ticking on crucial deadlines, like the 15-day window to request an ALR hearing to save your license.

It is crucial to remember that a charge is not a conviction. A strong defense examines every detail: Was the stop legal? Were tests administered correctly? Were your rights violated? The answers to these questions can be the key to a dismissal.

The Martinez Law Firm offers a unique insider’s perspective. As a former Chief Prosecutor for Harris County and a City of Houston Judge with 25 years of experience, Herman Martinez knows how prosecutors build their cases. We now use that knowledge to dismantle them and aggressively defend our clients in Houston and Harris County.

You don’t have to face this alone. We provide the aggressive, personalized defense you need, whether it’s a first offense or a felony charge. Don’t let a dwi and dui in texas charge ruin your future. Contact The Martinez Law Firm today for a consultation to discuss your defense strategy. Time is critical—let us fight for you. Learn more about Texas open container laws and how they might affect your case, or reach out directly to schedule your consultation. Your future deserves a fierce advocate—let us be that for you.

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