Driving (or operating a watercraft, aircraft, or moving amusement ride) while intoxicated

Note: DWI laws are not uniform throughout Texas, and may vary from county to county.

Blood Alcohol Concentration ("BAC")

Blood alcohol concentration ("BAC") is a measure of how much alcohol the driver ingested. The BAC is measured, not in absolute terms, but by measuring the percentage of alcohol in the driver’s blood. For example, if the BAC is .02%, then there are 2 parts alcohol for 100 parts blood in the driver’s body. The driver is guilty of Driving While Intoxicated ("DWI"), when his or her blood alcohol level is above the legal limit. A blood, urine or breathalyzer test can be used to determine the driver’s BAC. Below are the legal limits for Texas:

  1. Standard BAC –.08% or above.
  2. Zero Tolerance BAC (drivers under the age of 21) – .02%.
  3. BAC for professional drivers – .04%.
  4. High BAC – a BAC of .16% or higher can lead to higher penalties.
  5. Probation BAC – any detectable amount of alcohol is a violation of probation.


Initial Encounter with the police officer

After the officer stops the driver, if the officer believes that the driver may be driving while intoxicated, the officer can ask the driver to submit to a chemical test to determine the driver’s BAC. Urine, blood or breath tests may be used. If the BAC is above the legal limit, the driver’s license is automatically suspended, pending further proceedings.

Implied consent & chemical test refusal

When a person is arrested as a result of driving while intoxicated, that person is considered to have consented to a breath or blood test. If the driver refuses to submit to the "chemical test,"the officer is required to tell the driver the following information: the refusal is admissible in later prosecutions and the person’s license will be automatically suspended for 180 days, regardless of whether the person is found guilty. After disclosing the consequences of refusal, the officer is required to ask the driver to sign a statement that the officer requested a BAC test from the driver, informed the driver of the consequences of refusal, and that the driver continued to refuse.

Navigating the System after the Arrest

Administrative Procedure

  1. Hearing

    After receiving notice of suspension of his driver’s license, the driver has 15 days to request an administrative hearing. The hearing is held at the State Office of Administrative Hearings. A temporary driving permit remains valid until the administrative decision is made. The driver has a right to bring a lawyer to the hearing, but if the driver cannot afford a lawyer, he or she does not have the right to a state appointed lawyer. The following issues are decided at the administrative hearing: whether the officer had reasonable suspicion or probable cause to stop or arrest the driver; whether the driver took a BAC test and it was positive, or whether the driver refused to submit to the test.

  2. License suspension
    • First DWI: 90 to 365 days.
    • Second DWI/Third: 180 days to 2 years.

    The cost of getting a license reinstated after a DWI is $125.

  3. Ignition Interlock Device

An ignition interlock device is required after a second DWI conviction. The driver is responsible for paying for the device and installing it in his or her vehicle. This device prevents further DWIs by requiring the driver to breathe into it. The car will only start when the driver is sober.

Criminal Procedure

NOTE: The criminal procedure is separate from the administrative procedure (which is a civil process). Findings at the administrative hearing can be re-argued from scratch in criminal court. The administrative hearing is "independent of and is not an estoppel to any matter in issue in an adjudication of a criminal charge" resulting from the same suspected DUI.

  1. Charges & Consequences
    • First DWI Conviction is a Class B Misdemeanor. Penal Code 49.01.
      • County Jail: from 72 hours to 180 days.
      • A Surcharge of $1,000 is assessed on a yearly basis for a driver convicted of DWI for three years. With High BAC (.16%) the surcharge increases to $2,500 per year.
      • Fine: up to $2,000.
    • Second DWI conviction leads to an enhanced offense of Class A Misdemeanor. Penal Code 49.09.
      • County jail: from 30 days to 1 year.
      • Surcharge of $1,500 is assessed on a yearly basis for a driver convicted of DWI for three years. With High BAC (.16%) the surcharge increases to $2,500 per year.
      • Fines: up to $4,000.
    • Third DWI conviction leads to an enhanced offense of Felony in the Third Degree. Penal Code 49.09(b)
      • A surcharge of $1,500 is assessed on a yearly basis for a driver convicted of DWI for three years. With high BAC (.16%) the surcharge increases to $2,500 per year.
      • State penitentiary: Sentence between 2 and 10 years.
      • Fine: up to $10,000.
  2. Probation

    Probation may allow the driver to decrease both the jail sentence and the license suspension at the discretion of the judge. When on probation, the driver has to report to a probation officer once a month, and pay a $40 supervision fee. The driver may also be required to attend DWI awareness classes, perform community service, abstain from consuming alcohol, install an alcohol ignition lock device, and any other requirements the judge assigns.

  3. Defenses

The driver may try challenging the legality of the initial stop (did the officer have probable cause?) or challenge the evidence against him or her. The driver may try to work out a plea agreement with the prosecutor. Defenses are very fact specific and an attorney may be needed to assist in understanding the available options in a particular situation.

Driver’s Insurance consequences

After the insurance company learns of the DUI conviction the insurance company may increase payments or drop coverage entirely. However, without insurance coverage the driver cannot achieve the reinstatement of his or her license, because to regain his or her license, the driver must provide proof of insurance coverage to the Texas Department of Public Safety. The required proof of insurance is the SR-22 form, which is mailed by the insurance provider directly to the Department of Public Safety. The driver, through his or her insurance is required to submit the SR-22 form for two years after a DUI conviction.

Under 21 & DUI

An intoxicated minor may be found guilty of a DWI if any amount of alcohol is found in his or her system. The first DWI is a Class C misdemeanor. The DUI is punishable by the following:

  1. Fine: between $500 and $2,000.
  2. County jail: a term not exceeding 180 days.
  3. Community service related to prevention of the misuse of alcohol: 20-60 hours.

DUI & Enhanced Penalties

DUI & Victims

When a drunk driver has an accident where another person is injured or dies, including on duty emergency medical personal, the drunk driver may be guilty of "intoxication assault" (injured) or "intoxication manslaughter"(dead). Intoxicated assault is a Felony in the Third Degree and is punishable by 2 to 10 years in prison and up to $10,000 in fines. Intoxicated manslaughter is a Felony in the Second Degree and is punishable by 2 to 20 years in prison and up to $10,000 in fines.

DUI & minor under 15 in vehicle

If there is a minor under the age of 15 in the vehicle, the judge may increase the prison term to anywhere from 180 days to 2 years and may increase the fines to up to $10,000.

Open Container Laws

It is an offense for a passenger or a driver to have an open bottle of alcohol in the passenger area of the vehicle. This applies even if the car is parked, as long as it is on a public road. Cabs and other vehicles used for paid transportation, and motor homes are an exception– meaning that the passengers may have alcohol in the vehicle.

The jail term for a DUI may be increased by 6 days if a driver has an open bottle of alcohol in his or her possession in the vehicle.

Dram Shop Laws

In Texas it is possible for the victim of a drunk driver to bring an action against the person who provided alcohol to the driver if that person provided the alcohol to the driver when the driver was "obviously intoxicated to the extent that he presented a clear danger to himself and others."

Texas Resources

Texas Department of Transportation:

Texas DMV

Penal Code Chapter 49: Intoxication and Criminal Charges

Transportation Code Chapter 524: The administrative law of DUI

Alcohol Beverage Code Chapter 106: Alcohol and Minors

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