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Driving While Intoxicated (DWI)

DWI stands for Driving While Intoxicated, and those of us who practice criminal law know it as an “every person” crime.  It is perfectly legal to drink alcoholic beverages and then operate a motor vehicle in Texas.  That's why so many people from all walks of life experience a DWI arrest in their lifetime.  They go out for dinner or meet friends to socialize or celebrate with family and consume some alcohol.  They are having fun and are completely sober… until they're not.  Alcohol depresses the central nervous system, and losing track of how alcohol is impacting your brain is one of the most common symptoms of a depressed central nervous system.  We all can recognize someone who is clearly drunk, and most of us don't drive a vehicle when we're stumbling drunk.  So what separates drunk driving from intoxicated driving?

DWI Definition

The technical term for driving is “operating a motor vehicle.” While Texas does not have a statutory definition of operating, the highest criminal court in our state has indicated that:

  • a person operates a vehicle when the totality of the circumstances demonstrate that he took action to affect the functioning of his vehicle in a matter that would enable the vehicle's use.

That's about as clear as mud.  Sometimes the facts of a DWI arrest present doubt as to whether the arrested person was actually operating a motor vehicle.  Courts look at a long list of factors when determining whether a person was operating a motor vehicle, and it is important to have an experienced DWI attorney with knowledge of case law representing you if the operating element is in question. 

The second aspect of defining DWI is intoxication.  Texas Penal Code § 49.01 (2) defines intoxicated as:

  • 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, or a combination of two or more of those substances, or any other substance into the body; or
  • having an alcohol concentration of 0.08 or more.

The reason the Texas Penal Code provides these two different definitions of intoxicated is to account for tolerance.  Some inexperienced drinkers or very small people don't have to drink much before losing the normal use of their mental and physical faculties.  Their alcohol concentration could be low, but they are not safe to drive a vehicle.

On the other hand, an experienced drinker might appear to have the normal use of their mental and physical faculties, but our state legislature cites studies, which indicate that at alcohol concentrations of 0.08 or greater, a person's mental or physical faculties are impaired even if they can mask that impairment due to a high tolerance.

You many have heard the term, BAC. BAC can stand for Blood or Breath Alcohol Concentration.  Blood Alcohol Concentration is determined by drawing a specimen of your blood after your arrest and sending that sample to a DPS crime lab for analysis.  Breath Alcohol Concentration is determined by blowing a specimen of breath into a machine known as an Intoxilyzer 9000.

Texas DWI Laws

Texas DWI laws are described in Chapter 49 of the Texas Penal Code.  The Courts break down DWI statutes into elements, and prosecutors must prove each element of the offense beyond a reasonable doubt in order to secure a conviction.  Every DWI starts with the same foundational elements:

  • Identity of the person arrested
  • Date of the offense
  • County in Texas where the offense occurred
  • Operated a motor vehicle
  • In a public place
  • While intoxicated

Texas Penal Code § 49.09 contains different enhancements that raise the level of the DWI offense.  Those offense levels are:

  • 1st DWI with BAC less than 0.15 is a Class B Misdemeanor
  • 1st DWI with BAC 0.15 or greater is a Class A Misdemeanor
  • 2nd DWI is a Class A Misdemeanor, regardless BAC
  • DWI with a passenger under 15 is a State Jail Felony
  • 3rd or more DWI is a Third Degree Felony


Many people use DWI and DUI interchangeably, but Texas law defines the two terms differently.  You've already read the definition of Driving While Intoxicated, and you'll notice it says nothing regarding the legal drinking age of 21.  That's because the DWI statute only concerns itself with those elements and enhancements listed above.  Anyone, no matter the age, can be arrested and charged with DWI.

DUI, on the other hand, is age dependent.  The term stands for Driving Under the Influence, and the DUI statute says nothing about whether the arrested person must be legally intoxicated.  It does, however, only apply to people under the legal drinking age.  In Texas, if you are under 21 years of age and operating a motor vehicle with any detectable amount of alcohol in your system, you can be arrested for DUI.  Texas law, however, treats DUI as a Class C Misdemeanor, which is the legal equivalent of a speeding ticket.

What to Do When You've Pulled Over for DWI

  • Find a safe place to pull over: Do not suddenly stop, drive erratically, speed up, or pull over when it is unsafe. The officer can make note of this in the arrest report and it can be used against you.
  • Do not make sudden movements: Keep your hands on the driving wheel at the “10 and 2” position. The officer will approach your vehicle from behind.
  • Be polite and courteous: Understand that everything you do or say will be captured on video and can be used against you later.
  • Do not lie and politely refuse to answer incriminating questions: While you are required to give the arresting officer certain details, such as your license information and proof that you carry of auto insurance, under the Fifth Amendment, you have the right not to incriminate yourself by answering any other questions.
  • Refuse field sobriety tests: Field sobriety tests are not reliable and even sober people often find them difficult to pass. Politely refuse when asked.
  • Refuse a breathalyzer test: These are also notoriously unreliable, especially when they are not properly maintained or calibrated. Again, politely refuse.
  • After an arrest, refuse breath and blood tests: You are not required to provide a blood sample or blow a breathalyzer test in Texas and your results may be used against you.
  • Once released, write down everything you can remember about your arrest: This includes notes about the following:
    • Where were you were going?
    • How much did you drink?
    • Did you intentionally or unintentionally take any drugs?
    • How long after drinking or taking the drugs were you arrested?
    • What did you say to the officer?
    • How did the officer behave?
    • How many officer and squad cars were on the scene?
    • Were you read your Miranda rights?

DWI Arrest

Almost every DWI arrest begins with a traffic stop.  To stand up in court, a police officer must have probable cause that you committed a traffic code violation or reasonable suspicion that you are driving while intoxicated in order to initiate a traffic stop.  If an officer stops you based merely on a hunch, the initial detention is unlawful and will not survive a motion to suppress evidence.  Motions to suppress, when granted, cause all evidence gathered after a police officer's unlawful act to be thrown out.  In the case of a DWI, suppressing the initial traffic stop will leave the prosecution with no evidence of intoxicated driving.

After the traffic stop, the officer will ask you to exit your vehicle and perform a series of tests known as Standardized Field Sobriety Tests.  These are divided attention tests, validated by scientific research, that look for clues of intoxication.  The tests include Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand.  Officers use these tests to gather evidence supporting a loss of the normal use of mental and physical faculties.  

At the conclusion of the Standardized Field Sobriety Tests, the officer will likely place you under arrest, thinking that enough clues of intoxication have been observed to support probable cause.

Blood Alcohol Concentration

Once arrested, an officer will take you back to jail, at which point in time he or she will ask for a specimen of breath or blood.  While breath tests used to be common, these days officers almost always request blood.  You have a choice to consent to provide a specimen or refuse.  If you refuse, most officers will obtain a search warrant to take your blood anyway.

Texas 15 Day Rule: ALR Hearing & Occupational Driver's License

Your driver's license is subject to an Administrative License Revocation (ALR) issued by the Texas Department of Public Safety.  You have 15 days from the date of your arrest to file a request for an ALR hearing in order to fight the suspension.  If you consent to a breath or blood test and your BAC returns 0.08 or greater, your driver's license is subject to a 90-day suspension.  If you refuse, your license to drive is subject to a 180-day suspension, regardless your alcohol concentration.  I always recommend having an attorney request your ALR hearing and fight the suspension.

If the judge presiding over the ALR hearing orders DPS to suspend your privilege to drive in Texas, you will need something called an Occupational Driver's License, sometimes called an Essential Needs License.  This license is designed to allow you to drive during the period of the ALR suspension but not without restrictions.  An essential needs license restricts the time, places, and purposes for which you can drive.  An interlock occupational driver's license does not restrict your driving, but it does require you to have an ignition interlock device installed on your vehicle.  

Fighting a DWI Charge

A DWI arrest in Texas can be intimidating.  With the scientifically validated field sobriety tests and blood or breath alcohol concentration scores, it's natural to feel like there is no point in fighting. But a DWI investigation can go wrong in a number of ways.

First, the officer must have a lawful reason to initiate a traffic stop or detain you.  The first step a DWI lawyer will take is to analyze the reason and facts behind officers' initial contact with you.  A skilled DWI lawyer with extensive knowledge of case law can find errors officers make when they initiate a detention without developing a proper foundation, and in some cases, you may be able to get all evidence of intoxication suppressed.

Second, many things can mimic signs of intoxication.  Some people don't have good balance even on their best day.  Other times a driver might be extremely tired and not thinking quite like normal due to fatigue.  Health conditions like diabetes and past head injuries can cause a sober person to seem intoxicated.

Third, standardized field sobriety tests must be conducted in strict adherence to the procedures directed by the Nation Highway Traffic Safety Administration (NHTSA).  If the officer varies from the rule book, the tests are no longer scientifically validated and can be discredited in court.

Finally, it is not simply enough for prosecutors to point out an alcohol concentration score of 0.08 or greater and call it a day.  They must first prove that everyone in the chain of custody followed proper procedures when collecting and testing your breath or blood.  Prosecutors must also prove that the equipment testing your breath of blood was operating according to specifications.  And they must show that your alcohol concentration was greater than 0.08 at the time you were actually driving, not just a couple hours later when you were tested at the jail.  

Texas DWI Penalties

Texas law punishes Driving While Intoxicated through probation or incarceration.  The offense level of the DWI charge determines the range of punishment for probation or incarceration, and certain statutory enhancements will trigger additional conditions of probation.  

Common DWI punishment ranges are:

Class B Misdemeanor DWI

  • Fine not to exceed $2,000;
  • 72 hours to 180 days in the county jail; or
  • Up to 2 years of probation

Class A Misdemeanor DWI w/BAC >= 0.15

  • Fine not to exceed $4,000;
  • 0 days to 365 days in the county jail; or
  • Up to 2 years of probation

Class A Misdemeanor DWI 2nd

  • Fine not to exceed $4,000;
  • 30 days to 365 days in the county jail; or
  • Up to 2 years of probation

Felony DWI w/Child Under 15

  • Fine not to exceed $10,000;
  • 180 days to 2 years in the state jail; or
  • 2 years to 5 years of probation

Felony DWI 3rd or More

  • Fine not to exceed $10,000;
  • 2 years to 10 years in prison; or
  • 2 years to 10 years of probation

DWI Probation

One good thing for anyone arrested for driving while intoxicated is that prosecutors typically want to see you on probation rather than see you in jail, especially if it is your first or second DWI.  The reason is simple.  Jail sentences for DWIs usually fall at the low end of the punishment range, and when a person is on probation, their alcohol intake and ability to operate a vehicle after drinking can be limited. 

Typical DWI probation conditions include:

  • Duration of probation
  • Fine and court costs
  • Community service
  • 12-hour DWI education class
  • Victim impact panel presentation
  • Substance abuse evaluation
  • Random urine testing
  • No alcohol consumption
  • Requirement to consent to breath or blood testing if under investigation for another DWI while on probation
  • Restitution to the DPS for testing blood
  • Donation to MADD

If the DWI is a Class A Misdemeanor or Third-Degree Felony:

  • You must have an ignition interlock device installed on any vehicle you operate while on probation

If the DWI is being punished as a 2nd or subsequent offense:

  • There will be a small jail sentence to be served as a condition of probation

DWI Expungement

Expunctions completely destroy all traces of an arrest, and you can legally deny ever being arrested for this DWI charge after a statutory waiting period.  To be eligible for an expunction, one of the following must happen:

  • You are acquitted at trial
  • Prosecutors dismiss your case
  • Or in the case of a felony, the grand jury issues a no-bill

A nondisclosure normally seals the record from public view after you successfully complete deferred adjudication probation.  Once discharged from deferred adjudication probation, the court dismissed the charge, and at the appropriate time, you may petition to have your record nondisclosed.  The nondisclosure allows you to not disclose the arrest on job applications, rental applications, and other such matters.

Until recently, nondisclosures were not available for DWI charges.  Now, however, there is a path to a nondisclosure for driving while intoxicated.  You must plead guilty to a Class B DWI, the charge must be your first DWI arrest, and you must not have crashed into another vehicle leading up to the arrest.  Once you complete probation, whether deferred adjudication or with a conviction, you must wait a statutory waiting period of at least two years and at most five years.  Then you may petition for a nondisclosure

The specific facts of your DWI are unique, but every DWI case follows a similar path from beginning to end.  Police first make contact with you, whether that is a traffic stop for an alleged traffic code violation, response to a vehicle accident, performing a welfare check on a possibly stranded motorist, or knocking on your window when you're asleep in a parking lot.  They ask you a series of questions while you're sitting in your vehicle, all designed to see if your mental faculties seem impaired and to provide the officer time to see if your breath smells like alcohol.  The officer will then have you step out of your vehicle and perform standardized field sobriety tests.  At the conclusion of the tests, they almost always make an arrest.  Once they transport you to a jail or hospital, they will request a specimen of your breath or blood.  Then their investigation is complete.  

After you are booked for the DWI charge, you will need to post bond to get out of jail.  You will face a driver's license suspension and must file a timely request for a hearing to fight the suspension.  

Eventually, your case will be filed with the District Attorney's Office once alcohol concentration results are returned from the lab or breath test machine.  From that point, your attorney will review evidence, engage prosecutors in plea negotiations, and advise you whether to fight your case at trial or accept a negotiated plea agreement.  Ultimately it is your decision whether to enter a guilty plea or set the case for trial.    

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