Q: Under Texas law what is DWI?
A: DWI is a criminal offense that makes it illegal for a person to operate a motor vehicle in a public place “while intoxicated.”
Q: Under Texas DWI law what does “Intoxicated” mean?
A: Under Texas law one does not have to be drunk to be considered legally “intoxicated.” Instead, under Texas’ DWI laws “intoxicated” has two separate and distinct definitions. Under the first definition, a person who operates a motor vehicle is legally “intoxicated” when, through the use of an alcoholic beverage, drug, controlled substance, or any combination thereof has lost the “normal” use of either his or her “mental” or “physical” facilities (loss of use definition). Under the second definition, a person is legally “intoxicated” if he or she has an alcohol concentration if 0.08 or more in their body at the time of operation (per se definition).
Q: What is the meaning of the “normal” use of ones mental and physical faculties for purposes of the DWI laws in Texas?
A: The term “normal” use of one’s mental and/or physical facilities speaks to what is normal for that particular individual. The Texas DWI laws do not refer to a hypothetical “average” person, but again refer to what is normal for that given individual.
Q: What does an alcohol concentration of 0.08 mean?
A: Pursuant to Chapter 49 of the Texas Penal Code, which governs the offense of DWI in Texas, alcohol concentration is defined as:
  • Number of grams of alcohol per 210 liters of breath;
  • Number of grams of alcohol per 100 milliliters of blood, or;
  • Number of grams of alcohol per 67 milliliters of urine.
Q: Under Texas law what is offense of DUI?
A: In Texas, DUI is a crime that applies only to statutory minors (persons under 21 years of age) and it makes it illegal for a person under 21 years of age to operate a motor vehicle while having ANY detectable amount of alcohol in their system. DUI as the term is used in Texas is a separate and distinct offense from that of DWI. Also, it is important to note that the law in Texas has been changed and now it is also illegal for a person under 21 years of age to operate a watercraft while having any detectable amount of alcohol in their system. As with the offenses of DWI & BWI, the offense of DUI requires that you request an ALR within 15 days from the date of your arrest or your license will be suspended AUTOMATICALLY. Click for more information on the ALR process.
Q: Can I refuse a breath or blood test if I am arrested for DWI?
A: Yes, you have the right to refuse to provide law enforcement with a specimen of your breath or blood. The exceptions to this rule are when a person is seriously injured or dies as a result of the driver’s intoxication, and when a search warrant is obtained.
Q: Can I refuse a breath or blood test if I am arrested for Boating While Intoxicated?
A: Yes, you have the right to refuse, unless someone is seriously injured or dies as a result of the boater’s intoxication, and when a search warrant is obtained.
Q: Under Texas DWI law, if I provide a specimen for chemical analysis (e.g. breath or blood) and it shows a prohibited concentration (i.e. 0.08 or more) am I guilty of DWI?
A: No, under the statutory scheme that governs the offense of DWI in Texas, it is not a crime to “test” while intoxicated. Rather, the DWI laws in Texas only speak to having an alcohol concentration of 0.08 or greater at the time of operation/driving.
Q: Can my driver’s license be suspended if I refuse to submit to a breath or blood test if I am arrested for Boating While Intoxicated?
A: YES! The law was changed and now a person who is arrested for Boating While Intoxicated faces a potential suspension of their driver’s license if they refuse to voluntarily provide a specimen of their breath or blood. Therefore, if you are arrested for Boating While Intoxicated it is absolutely imperative that you contact a competent and skilled DWI/BWI attorney as soon as possible following your arrest, as you only have 15 days from the date of your arrest to request an administrative hearing or your license will be suspended automatically.
Q: What is an ALR hearing?
A: ALR is an acronym for Administrative License Revocation, which is as the name implies an administrative hearing held before State Office of Administrative Hearings (SOAH) and presided over by an Administrative Law Judge (ALJ). If properly requested an ALR hearing is required before the DPS may legally suspend your license following an arrest for misdemeanor DWI or BWI and the felony offenses DWI with Child Passenger, Intoxication Assault, and Intoxication Manslaughter. Click for more information on ALR hearings.
Q: What are the potential ranges of punishment for misdemeanor DWI?
A: In Texas the punishment scheme for intoxicated related charges arising from the operation of a motor vehicle range from a Class B misdemeanor to a second-degree felony.
  • First Offense (non-aggravated): DWI is a Class B misdemeanor with a fine not to exceed $2,000 and/or a potential period of confinement in the County jail for a period of 72 hours to 180 days. Also, if convicted your driver’s license could be suspended from 90 days to 1 year.
  • First Offense (aggravated): DWI with 0.15 or greater is a new offense created by the legislature in 2011. Under this law, a first time offender from whom law enforcement obtains a chemical specimen which upon analysis reflects an alcohol concentration of 0.15 or more will be charged with a Class A misdemeanor.
  • First Offense (open container): while the offense remains a Class B misdemeanor an open container allegation increases the potential minimum term of confinement to six days.
  • Second Offense: A DWI with a prior conviction. A second offense DWI is a Class A misdemeanor, with a potential minimum term of confinement of 30 days and a fine not to exceed $4,000.
Q: When is a DWI offense a felony?
A: When the person arrested has two prior convictions for DWI, or where there was an accident involving serious bodily injury or death occurred.
  • DWI with Child Passenger: If you are arrested for DWI and you have a child under the age of 15 in the vehicle you are facing a state jail felony charge, which carries the potential punishment of a fine not to exceed $10,000 and a potential period of incarceration for a period between 6 months to 2 years in a state jail facility. If you are sentenced to incarceration in a state jail facility generally you will serve your entire sentence day for day, with no time credits for good behavior and no potential to be released early on parole. However, under the new laws that took effect in September, 2011 inmates sentenced to state jail facilities may be eligible to receive a slight reduction in their sentence if they qualify for “diligent participation credits.”
  • Third Offense: If are arrested for DWI and have two prior convictions for DWI you are facing a third degree felony charge, which carries with it a potential fine not to exceed $10,000 and a potential period of incarceration between 2 to 10 years.
  • Intoxication Assault: Where there is a DWI involving an accident that causes serious bodily injury to another, the offense is referred to as intoxication assault. Intoxication assault is a third degree felony offense and carries a potential fine not to exceed $10,000 and a potential period of incarceration between 2 to 10 years.
  • Intoxication Manslaughter: Where a person driving (operating) a motor while intoxicated (DWI) and by reason of that intoxication the persons cause the death of another by accident or mistake we refer to the offense as Intoxication Manslaughter. Intoxication Manslaughter is a second-degree felony offense and it carries a potential fine not to exceed $10,000 and a potential term of incarceration of 2 to 20 years.
Q: What are the elements of the offense of DWI with a Child Passenger?
A: A person commits the offense of driving while intoxicated with a child passenger if: (i) a person is intoxicated while operating a motor vehicle in a public place, and; (ii) the vehicle being operated by the person is occupied by a child younger than the age of fifteen (15) years of age. This offense is a state jail felony offense.
Q: Is there a limitation on the period that a previous DWI can be used to enhance a new DWI offense?
A: For DWI offenses, any previous conviction for DWI or other offense relating to operating a motor vehicle while intoxication can be used. There are no longer any time-limitations, and any previous conviction may be used no matter how distant.
Q: Can a previous out of state conviction under the laws of another state that prohibit the operation of a motor vehicle while intoxicated be used to enhance a DWI received in Texas?
A: Yes, the Texas DWI laws allow for the use of out-of-state convictions to enhance a DWI received in Texas, so long as the offense elements are “substantially similar” to those contained within the Texas statutory scheme. Therefore, it is imperative you contact an well versed DWI attorney to review the out-of-state conviction; as other states have variants of the offense that do not have a counterpart under the Texas DWI laws and it is not uncommon to see such out-of-state convictions improperly used to enhance a new offense.
Q: Can I get deferred adjudication for DWI?
A: Not in Texas. Under the laws of the State of Texas a person may not receive deferred adjudication community supervision (probationary period/community supervision and dismissal of the case upon successful completion of all terms) for the offense of Driving While Intoxicated (DWI) or other offenses relating to operating a motor vehicle intoxicated.
Q: How long will a DWI conviction appear on my record?
A: Once a conviction becomes final, it will always be reported and will permanently remain on your history, and therefore it will accessible through public record searches to potential employers, credit agencies, insurance companies, etc. However, if your DWI was dismissed, then the Texas expunction laws may allow you to have the records relating to your arrest destroyed, all index entries erased, and allow you to legally deny the occurrence of your arrest erased if you qualify to file a petition for expunction of criminal records.
Q: If I am found guilty of an offense relating to the operation of a motor vehicle while intoxicated, what surcharges will I have to pay?
A: Under the Texas Transpiration Code, a person convicted of operating a motor vehicle while intoxicated will be required to pay the following surcharges:
  • $1,000 per year for the following three years (if not convicted of an offense relating to driving while intoxicated with the preceding three year (36-month) period.
  • $1,500 per if prior conviction for operating a motor vehicle while intoxicated within the three year (36-month) period.
  • $2,000 per year for if it is shown that the person had a blood-alcohol concentration of 0.16.