DUI vs. DWI in Texas
Driving Under the Influence of Alcohol in Texas in a Class C misdemeanor offense. A DUI is different from a DWI for the following reasons:
- Driving While Intoxicated requires the State to prove the person was intoxicated. Driving Under the Influence only requires the State to prove “any detectable amount of alcohol.”
- Driving While Intoxicated can be charged against anyone who is intoxicated and operating a motor vehicle, regardless of how old they are. Driving Under the Influence only applies to someone under the age of 21.
- Driving Under the Influence has a maximum penalty of up to $500. A first offense of Driving While Intoxicated in Texas carries a jail sentence of 3 days up to 180 days and up to a $2,000 fine.
What is a DUI in Texas?
In Texas, if you are 21 or older, the law allows you to drink and then drive, as long as you are not intoxicated. If you are under 21, however, you cannot drink and then drive. If you are under 21 and have any detectable amount of alcohol on your breath, you will be charged with Driving Under the Influence (DUI) and if you are intoxicated, you can be charged with Driving While Intoxicated (DWI). If you’ve been charged with one of these offenses, nothing can replace talking to a DWI attorney who is experienced in handling these cases, but here is a primer to get you started on the differences between DWI and DUI in Texas.
What is the Punishment for a DUI in Texas?
While the DWI statute can be found in the Texas Penal Code, the DUI statute is indexed in the Texas Alcoholic Beverage Code. A first-time DWI is classified as a Class B misdemeanor when a “person is intoxicated while operating a motor vehicle” or if they had “an open container of alcohol in [their] immediate possession (unless a blood, breath, or urine test showed an “alcohol concentration level of 0.15 or more at the time the analysis was performed,” in which case it is a Class A misdemeanor). Tex. Penal Code § 49.04(a)-(d). On the other hand, a person under 21 (a minor) commits a Class C misdemeanor DUI, which does not require an arrest, if operating “a motor vehicle . . . while having any detectable amount of alcohol” in their system. Tex. Alco. Bev. Code § 106.041(a).
You can only be charged with a DUI if you are under 21 in Texas. You can be charged with a DWI at any age in Texas.
DUI charges are based solely on the consumption of alcohol. DWI charges can be based on the use of alcohol, prescription drugs, dangerous drugs or a combination of any of those things.
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Tex. Alco. Bev. Code § 106.041 Driving Under the Influence
(a) A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system.
(b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor.
(c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section, the offense is punishable by:
(1) a fine of not less than $500 or more than $2,000;
(2) confinement in jail for a term not to exceed 180 days; or
(3) both the fine and confinement.
(d) In addition to any fine and any order issued under Section 106.115, the court shall order a minor convicted of an offense under this section to perform community service for:
(1) not less than 20 or more than 40 hours, if the minor has not been previously convicted of an offense under this section; or
(2) not less than 40 or more than 60 hours, if the minor has been previously convicted of an offense under this section.
(e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol.
(f) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred disposition or deferred adjudication.
(g) An offense under this section is not a lesser included offense under Section 49.04, Penal Code.
(h) For the purpose of determining whether a minor has been previously convicted of an offense under this section:
(1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction under this section; and
(2) an order of deferred disposition for an offense alleged under this section is considered a conviction of an offense under this section.
(i) A peace officer who is charging a minor with committing an offense under this section is not required to take the minor into custody but may issue a citation to the minor that contains written notice of the time and place the minor must appear before a magistrate, the name and address of the minor charged, and the offense charged.
(j) In this section:
(1) “Child” has the meaning assigned by Section 51.02, Family Code.
(2) “Motor vehicle” has the meaning assigned by Section 32.34(a), Penal Code.
(3) “Public place” has the meaning assigned by Section 1.07, Penal Code.
Sec. 106.01. DEFINITION. In this code, “minor” means a person under 21 years of age.