What is the Difference Between a DUI and DWI in Texas?

Many people are confused about the difference between a DWI and DWI charge in Texas.  Sometimes the offense of driving under the influence of alcohol is referred to as driving while intoxicated (DWI). Other times it is referred to as driving under the influence (DUI). Is it correct to call it DWI or DUI in Texas? The answer is that it depends on where you are. If you are in Texas, the charge of driving while intoxicated by drugs or alcohol is called a DWI. 

What Constitutes a DWI in Texas?

The offense of driving while intoxicated is found in Section 49.04 of the Texas Penal Code. The law simply states  that “a person is intoxicated while operating a motor vehicle in a public place.” Texas refers to driving while intoxicated as a DWI while other states may refer to the same crime as a DUI. The definition of driving while impaired by alcohol or drugs is similar in most states. 

In Texas, driving while intoxicated happens when the driver does not have “the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, dangerous drug, or combination of two or more those substances, or any other substance into the body.” Prosecutors can also charge a suspect with a DWI in Texas if he or she has an alcohol concentration of over .08% in his or her blood. Specifically, having a blood-alcohol concentration of .08% or more for any adult or .04% for commercial driver’s license holders is grounds for a DWI.

What Does it Mean to Lack the Normal Use of Mental or Physical Faculties?

In Most Texas DWI cases, law enforcement officers will require a suspect to take a breathalyzer test or a blood alcohol test to determine the level of intoxication in his or her bloodstream. These tests are the easiest way to show that a driver is driving while under the influence of drugs or alcohol. As long as the prosecution can show that the defendant had a blood-alcohol concentration of row 8% or higher, they can convict the defendant of a DWI.

However, law enforcement officers can arrest a person for a DWI even without testing his or her blood alcohol concentration. As long as the law enforcement officer determines that you have the following types of impairments, you can be arrested for a DWI:

  •  lacking normal mental and physical faculties due to consuming alcohol, or
  •  lacking normal mental and or physical faculties due to consuming a controlled substance, including over the counter medicines and prescriptions, and illegal drugs

When a suspect is 21 years or older and the police officer has probable cause to believe he or she falls under one of these categories, the suspect will likely face a DWI charge. However, the law enforcement officer must have probable cause to arrest a person for DWI. If not, the arrest is illegal because of the suspect’s constitutional rights. Law enforcement officers can obtain probable cause through the results of a breathalyzer test, a field sobriety test, or results from a drug recognition expert examination (DRE).

In Texas, first-time DWI charges are considered a Class B misdemeanor unless the suspects blood alcohol concentration level was over .15%. If a controlled substance was involved, a DWI could be coupled with additional charges for drug possession or distribution. 

DWI vs. DUI – There are Two Different Legal Definitions

In Texas, the crime of DUI is an offense reserved for minors under the age of 17. However, prosecutors can also bring DUI charges against someone between 17 and 18 years old, depending on the facts and circumstances of the case. The charge of driving while intoxicated is reserved for adults over age 21, but minors between the age of 17 and 20 can be charged with a DWI in some cases. Minors under the age of 21 are not allowed to drive it all with any trace of alcohol in their system.

Regardless of your age, it is illegal to drive with a blood-alcohol concentration at or above .08%. It is also illegal to drive with a lack of control over your mental and physical faculties. When someone is struggling to walk straight, slurring words, or reeks of alcohol, law enforcement officers can arrest them for DUI.

Why Have I Been Charged With a DUI, Not a DWI?

The vast majority of intoxicated driving charges in Texas are DWI charges. However, it is possible that you have been charged with a DUI. Under Texas law, operating a motor vehicle in a public place with any detectable amount of alcohol in the minors system constitutes a DUI. Suppose a 16-year-old had a drink of alcohol at a party and then decided to drive home. If a law enforcement officer pulls the teenager over and conducts a breathalyzer test, and the breathalyzer detects alcohol, the teenager can face a DUI charge. Even if the police officer simply smells alcohol on the suspect’s breath, the officer can arrest the suspect for a DUI. This is a zero-tolerance policy toward driving with alcohol and drugs for underage people.

As a result, the difference between a DUI and DWI in Texas is not just a person’s age. It also has to do with Texas’s zero-tolerance policy for minors when it comes to drinking and driving. To be charged with a DWI in Texas, an adult must exhibit a lack of normal use of his or her mental or physical faculties or be legally intoxicated as proven through a blood alcohol test. When it comes to minors, law enforcement officers are not required to demonstrate that they have been physically or mentally impaired in any way. All that is required is a trace of drugs or alcohol on the minors breath.

About Doug Wilder | Wilder Law Firm

Founding partner Doug Wilder began his legal career as a prosecutor, which he did from 1995-2000.  After prosecuting thousands of DWI’s and teaching police officers how to be more effective, he took all of his skill and knowledge and applied it to defending people, many of whom are wrongly accused. Doug Wilder is also a Field Sobriety Test Instructor and has taught the Student Field Sobriety Test Course around the country, and continues to be involved in teaching police officers as well.

* Please note: All articles on this blog are for informative purposes only, and are no substitute for legal advice or an attorney-client relationship. If you are being accused of a crime, please contact our law firm directly for professional representation.

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