Texas's driving while intoxicated (DWI) (also called "DUI") laws prohibit operating a vehicle while impaired by drugs and/or alcohol. The Texas Legislature and courts have defined the offense in ways that might go beyond what most people may expect.
This article outlines exactly how Texas law defines a DWI and the penalties a convicted driver might face for a first, second, and third offense.
To convict a driver of a DWI charge in court, prosecutors must prove he or she was operating a vehicle in a public place:
In other words, a DWI conviction can be based on BAC or actual intoxication.
Although called "driving while intoxicated," a DWI conviction doesn't require proof that the person actually drove the vehicle. All that's required is proof that the person was "operating" a vehicle, which Texas law defines to include but not necessarily require movement of the vehicle.
Specifically, Texas law defines operation to include any action on the part of the driver that affects the functioning of a vehicle in a manner that would enable the vehicle's use. Under this definition, a person who is in a running but stationary vehicle or even just attempting to start their vehicle can be convicted of a DWI.
Relevant considerations in determining whether a person was operating a vehicle might include where the keys were located, where the operator was located, and if any mechanics or electronics were manipulated.
A person is considered intoxicated in Texas if the consumption of drugs, controlled substances, or alcohol caused the "lack of normal use of mental or physical faculties." To prove intoxication, prosecutors might use evidence such as blood, breath, or urine test results, officer testimony, or expert witness testimony.
It's also possible for a driver to be convicted of a DWI based solely on BAC, called a "per se DWI." A driver with a BAC above a certain threshold can also be guilty of DWI without having to prove actual intoxication. This limit is set at .08% for most drivers and .04% for commercial vehicle operators.
The fact that a person was prescribed the ingested drugs is not a defense to a DWI charge. In fact, even legal substances like sleeping medication and muscle relaxers can lead to intoxication and a DWI conviction.
The penalties for a DWI in Texas are set by statute and depend primarily on the number of prior offenses the driver has. In Texas, all DWI convictions within the driver's lifetime are considered prior offenses.
Generally, first and second DWI convictions are misdemeanors. The chart below outlines the range of jail time and fines for a first and second DWI conviction in Texas.
72 hours to six months
30 days to 12 months
Up to $2,000
Up to $4,000
After the offender serves at least three days in jail, the judge will generally place the offender on probation for six months to two years. During probation, the offender is often required to complete certain tasks such as monitored sobriety, random drug testing, attendance at a victim impact panel, and community service.
As part of probation, offenders are also required to complete an alcohol awareness program approved by the state. This program might include substance abuse education classes or inpatient treatment. The judge can also order that the driver's license be suspended until all treatment is completed.
Many factors, including having minor passengers, an excessive BAC, or an open container can lead to increased penalties.
An impaired driver with a passenger under the age of 15 can be charged with a felony. A conviction carries 180 days to two years in prison and up to $10,000 in fines.
A first-offense DWI that involved a BAC of .15% or more carries up to 12 months in jail and a maximum $4,000 in fines.
An offender who was transporting an open container of alcohol while under the influence must serve at least six days in jail prior to probationary release.
A Texas DWI that involved death or serious injury or was preceded by at two prior DWI convictions will normally be charged as a felony.
A DWI that results in serious injuries to another person is considered "intoxication assault," a third-degree felony. A conviction carries two to ten years in prison and up to $10,000 in fines.
An impaired driver who causes the death of another person can be convicted of "intoxication manslaughter," a second-degree felony. A conviction carries two to 20 years in prison and up to $10,000 in fines.
An offender with a prior intoxicated manslaughter conviction or at least two prior DWI convictions can be convicted of a third-degree felony. A conviction will carry two to ten years in prison and up to $10,000 in fines.
Getting arrested for DWI will often result in license suspension—even without a DWI conviction. The length of the suspension generally depends on the number of prior offenses the driver has, the driver's BAC, and the driver's cooperation with the investigation. All prior alcohol-related enforcement contacts (such as test failure, test refusals, and DWI convictions) that occurred within the last ten years are considered.
Texas's "implied consent" law specifies that any person who is arrested for suspected DWI is deemed to have given consent to one or more tests of their blood or breath. These tests are used to determine the presence and concentration of any consumed alcohol or drugs. While a driver can refuse to submit to testing, doing so can result in penalties.
When a driver refuses to take an alcohol or drug test as required by the implied consent law, the officer will seize the driver's license and issue a temporary driving permit. The officer will then submit a report to the DMV. Generally, the DMV will suspend the driver's license for:
A driver who submits to chemical testing and produces a BAC that's above the legal limit will also face license suspension. The arresting officer will seize the driver's license and issue a 40-day temporary license. Generally, a driver with no prior offenses will be suspended for 90 days. A driver who has at least one alcohol-or drug-related enforcement contact within the last ten years will be suspended for one year.
As part of sentencing, the court will suspend the driver's license for a DWI conviction. The driver's license will be suspended for:
A driver who is suspended for a test failure or refusal will receive credit towards any suspension ordered for a conviction.
During sentencing, the judge can grant the driver a restricted license to use during the suspension period. This restricted license generally requires the driver to install and use an ignition interlock device.
Offenders who have a prior DWI conviction within the last five years will be required to have an IID for an additional year after serving the license suspension period.
Texas prohibits drivers who are under 21 years of age from driving with any measurable amount of alcohol in their system. Sometimes called a "DUI," a conviction is a class C misdemeanor and carries up to $500 in fines as well as 20 to 40 hours of community service. The driver's license will also be suspended for 90 days and he or she must complete a drug and alcohol awareness program.
Repeated violations will result in increased penalties and possible jail time.
A DWI charge in Texas is very serious. If you've been arrested for driving under the influence, get in touch with a DWI lawyer. A qualified DWI attorney can review your case and help you decide on the best course of action.