Texas’s DWI laws prohibit all motorists from operating a motor vehicle:
- with a blood alcohol concentration (BAC) of .08% or more, or
- while intoxicated by drugs or alcohol.
Generally, you are considered “intoxicated” if you “lack the normal use of mental or physical faculties” as the result of ingesting alcohol, drug or any other substance.
(It’s also illegal to operate a boat while intoxicated (BWI) in Texas.)
Texas also has “zero tolerance” laws making it illegal for underage drivers (those under 21 years old) to get behind the wheel with any detectable amount of alcohol in their system.
Getting a DWI Without Actually Driving
In Texas, a motorist can get a DWI even without actually driving: The statute defines DWI as “operating” a vehicle while intoxicated or with a prohibited BAC. So while driving is sufficient for a conviction, it isn’t required.
Texas courts have said the term “operate” is very broad and includes any action to “affect the functioning” of a vehicle in a manner that “enables its use.”
Texas Blood Alcohol Concentration (BAC) Limits and Per Se DUIs
A drunk driving offense based on BAC—as opposed to the driver’s level of impairment—is known as a “per se” DWI. The amount of alcohol a person must drink to reach the legal limit depends on a number of factors such as gender, body size, and number and strength of drinks.
Our BAC calculator and BAC table can give you an estimate of where your BAC might be at after a certain number of drinks. However, these are just approximations that don’t take into consideration all the factors that can affect BAC. If you’ve been drinking, it’s always best not to drive.
Texas DWI Penalties
Texas DWI penalties vary based on the circumstances of the case. But the range of allowable penalties depends, in large part, on how many prior convictions the offender has. Here are what the potential sentences generally look like for a first, second, and third DWI.
| 1st Offense | 2nd Offense | 3rd Offense | |
|---|---|---|---|
| Jail | 72 hours to six months (12-month maximum with BAC of .15% or more) | 30 days to 12 months | 2 to 10 years |
| Fines | Up to $2,000 (or up to $4,000 with BAC .15% or more) | Up to $4,000 | Up to $10,000 |
| License Suspension | 90 days to 12 months | 180 days to 2 years | 180 days to 2 years |
| Ignition Interlock Device (IID) | Only as a condition of obtaining an “occupational license” | 1 year (with a prior conviction within 5 years) | 1 year (with a prior conviction within 5 years) |
Implied Consent and Refusing a Blood or Breath Test in Texas
Texas’s “implied consent” laws require all drivers lawfully arrested for a DWI to submit to a blood or breath test. Motorists who refuse testing face the following license suspensions periods.
| 1st Offense | 2nd offense | 3rd Offense | |
|---|---|---|---|
| License Suspension | 180 days | 2 years | 2 years |
For purposes of determining what is a second or third refusal, prior DWI convictions, refusals, and failed BAC test (.08% or greater) within the past ten years are counted.
Difference Between DWI and DUI in Texas
You are no doubt familiar with the terms DUI and DWI. You may not, however, fully understand how the two terms are similar and how they are different. First, “DUI” is short for “driving under the influence” and DWI means “driving while intoxicated.”
In Texas, both a DUI and a DWI refer to an individual operating a vehicle in a public place while intoxicated, which means he or she lacks the normal use of mental or physical faculties because of the use of alcohol or a drug. “DWI” is the legal definition of this crime in Texas, although “DUI” is commonly used interchangeably.
A person 21 years of age or older can be charged with a DWI if he or she operates a vehicle while legally intoxicated (has a .08 blood or breath alcohol concentration or is impaired by drugs).
However, under Texas law, if a person under the age of 21 is pulled over and has any alcohol in his system, then he or she can be charged with a “DUI” (or “DUIA,” which stands for “Driving Under the Influence of Alcohol”). This is the only officially legal use of the term “DUI” in Texas.
Texas Zero Tolerance Policy
It is irrelevant whether the minor is impaired by the alcohol in his system. In Texas, if a driver is under 21, it is illegal to drive with any detectable amount of alcohol in his system. This is due to Texas’s zero-tolerance policy.
A person under the age of 21 can still be charged with a DWI if he or she has a blood or breath alcohol concentration (BAC) of .08 or greater or was driving while under the influence of drugs.
Which is Worse: DUI or DWI?
In reality, whether a DUI or DWI is worse will depend on the state where you reside. In Texas, DWI is a more serious crime. DUIs are only charged to minors under the Texas Traffic Code. Because a DUI is charged when any amount of alcohol is found in their system, it is much easier to be found guilty, however.
DWIs are charged under the Texas Penal Code, which makes it a serious offense. Penalties can range from heavy fines to time in jail or prison.
Although you should not take either charge lightly, the consequences of a DWI are more severe than a DUI.
DWI Texas Penal Code
Texas penal code Section 49.04 defines the laws for DUI & DWI charges. Another difference between a DWI and DUI is the penalties imposed for each offense. For a first time DWI offense, one may receive a fine up to $2,000, a jail sentence between 3 and 180 days, a loss of one’s driver’s license up to a year, and an annual fee of $1,000 or $2,000 for 3 years to retain one’s driver’s license.
However, a minor charged with drinking and driving may receive a fine up to $500, a 60-day suspension of his or her driver’s license, 20 to 40 hours of community service, and mandatory alcohol awareness classes. For subsequent offenses, the severity of the penalties increases for both a DWI and DUI.