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Texas DWI Law and Legal Resources
Summary of
Texas DWI Law
Administrative License Revocation Law (ALR) in Texas
Laws Pertaining to Minors ("Zero Tolerance")
DWI & "Intoxication" under Texas Law:
Driving while intoxicated, first offense, is a Class B Misdemeanor that is defined at Texas Penal Code §49.04. That provision states that, " A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place". This definition sets forth the elements that must be proven to sustain a conviction. Those elements are:
- The defendant, on or about a particular date - Was operating a motor vehicle - In a public place (street, highway, beach, parking lot, etc) - In a particular county - While intoxicated
The Texas legislature has specifically defined the term "intoxication", as that term is used for prosecution of DWI cases {Texas Penal Code §49.01(2)}. There are two definitions to encompass those who do or do not submit to chemical testing:
1) "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, a combination of two or more of those substances, or any other substance into the body; or
2) "having an alcohol concentration of 0.08 or more."
It is important to note that the law provides for intoxication by the introduction of any intoxicating substance into the body. This is designed to make our roadways safe from dangerous drivers. Typically, proof at trial is restricted to alcohol unless some statements or other indications suggest that the driver has become impaired by some other substance. It is important to note that being on prescription drugs is not a defense to a DWI prosecution. If the label suggests that ingestion will impair one's ability to operate a motor vehicle or machinery, taking such medicine and driving may subject you to DWI arrest and conviction. At trial, the State therefore may prove intoxication in three (3) different ways:
- not having the normal use of physical faculties OR
- not having the normal use of mental faculties OR
- having an alcohol concentration of 0.08 or more.The jury does not have to be unanimous on the manner and means of intoxication, only that the person was intoxicated. It is also important to note that intoxication must occur and be proven to occur while driving.
Many other States provide for prosecution of a "lesser included" offense other than DWI (i.e. reckless driving, impaired driving, driving under the influence, etc.). Texas however has no lesser included offense of DWI. Some counties offer plea bargain agreements to other charges than DWI, but they are the exception and not the rule.
Classifications & Range of Punishment for DWI Conviction | Go To Top
DWI, 1st Offense: Class B Misdemeanor.
Fine: A fine not to exceed $2,000.00.
Jail: Confinement in the County Jail for a term of
not less than 72 hours nor more than six (6) months.Open Container:If there was an open container of alcohol in your car when arrested, the minimum term of confinement is six (6) days in the county jail.
Community Service:Texas law mandates that a judge order not less than 24 hours nor more than 100 hours.
Absent unusual facts, most persons convicted of a first offense DWI are granted community supervision ("probation") of any confinement ordered. The general length of DWI probation is two years. There are also conditions of community supervision ordered that are fairly standard in most courts. Typical conditions imposed are:
Drug/Alcohol Evaluation. A person convicted of DWI will be required to submit to evaluation for probability of committing DWI in the future and/or to disclose a potential problem with alcohol or drug abuse. If a problem is detected, additional terms and conditions of probation are ordered to be administered through the Community Supervision Department.
Attend and complete an approved DWI Education class within 180 days from the date of conviction (Satisfying this requirement will avoid the one (1) year drivers license suspension, unless if you were a minor (under 21) at the time of the offense.)
Attend and complete a M.A.D.D. Victim Impact Panel. This is a forum presented by M.A.D.D. that presents victims of drunk drivers to address persons convicted of DWI and warn of the dangers and perils of driving while intoxicated.
Work faithfully at suitable employment, commit no other crimes, remain at the same residence and employment unless notification is given to the community supervision officer, report monthly to the supervision office, pay all fines and costs in a timely manner.
Pay a monthly supervisory fee of $25.00 - $40.00.
Perform a specified hours of community or volunteer service NOTE: If convicted, you will be given an Order Granting Probation. This Order will be specific and unique to your case and fully sets forth the terms and conditions of your probation which apply to you. It is the blueprint for your probation.
Additional Conditions of Probation that may be Ordered:
If your case presents unusual facts (accident, alcohol problem, prior alcohol contacts, bad driving record etc.), additional conditions may be ordered. Most conditions are designed to address a problem that appears from the facts or alcohol/drug evaluation that is performed on the subject after conviction. Again, a specific order is given after each conviction. The following list is only a general discussion of conditions that have been imposed in some DWI cases in my experience and may not apply to you.
Deep lung air device: Some counties (Collin & Denton) are requesting this condition for all DWI probations. This provision requires that you install and maintain a device on any car which you intend to drive during probation. The device requires a breath sample before it will allow your car to start. Some devices require periodic breaths while driving. This condition is recommended after a unfavorable drug/alcohol evaluation.
Alcohol Treatment: Attendance at AA or other counseling programs offered through the probation department. In extreme cases outpatient programs may be ordered. This condition is recommended after a unfavorable drug/alcohol evaluation.
Consume no alcohol: Some courts require that a person not consume any alcohol during probation. This provision is monitored by periodic and random urinalysis at the probation office. This condition is recommended by particular judges in North Texas.
Confinement: Again, in some extreme circumstances, the Court may order that a DWI offender serve confinement in the county jail as a condition of probation.
Restitution: If there was an accident followed by a DWI arrest, and if your insurance company has not paid damages to the other party, restitution of any unpaid amounts will be ordered by the Court as a condition of probation.
Enhanced Penalties: (Prior alcohol or drug related criminal history)
Under Texas law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after conviction are increased or enhanced. The prior DWI conviction must have occurred within ten (10) years of the present arrest for DWI. Additionally, if a person has any prior DWI conviction within the previous ten year period (measured from dates of arrest), the State is then allowed to use any prior DWI conviction since obtaining a drivers license to enhance the accusation to a DWI, third offense. NOTE: Texas can use prior convictions that have occurred in other states for enhancement of punishment.
DWI, Second Offense: Class A Misdemeanor | Go To Top
Special Condition for Jail Release on Bond: It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law now requires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install and maintain a deep lung air device on the car that the person intends to drive and operate while charges are pending. The device requires a breath sample before it will allow you to start your car. They also require periodic breaths while driving to monitor and insure sobriety. New technology has made these devices "user sensitive" so that someone else cannot blow into the device for the driver. Although this provision seems to run afoul of the presumption of innocence, Texas Courts have consistently held that such condition is necessary to protect a legitimate governmental interest in making public roadways safe for the motoring public.
Fine: A fine not to exceed $4,000.00.
Jail: Confinement in the County Jail for a term of
not less than 72 hours nor more than one (1) year.Community Service: Texas law mandates that a judge order not less than 80 hours nor more than 200 hours.
Deep lung air device: Typically deep lung devices are required for all DWI second offenders during probation.
Suspension of license: A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.
DWI, Third Offense (or greater): Third degree FELONY
Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years.Deep lung air device: Deep lung air devices are generally ordered on all persons convicted of three or more DWI's both as conditions of bond and as conditions of any occupational or provisional licenses that may be awarded after conviction.
Community Service: Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.
Suspension of license: A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.
Other: A third conviction for DWI indicates a significant problem with alcohol to the Court or jury assessing punishment. Some type of rehabilitative treatment is therefore mandated in punishment if confinement in the penitentiary is to be avoided. In some cases an in-patient, incarceration program (Substance Abuse Felony Probation SAFP) is ordered. This program requires confinement in a State Facility for alcohol rehabilitation. After successful completion of the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.
Another popular condition for habitual DWI offenders is a prescription for a drug named "Antibuse". This drug will make a person violently ill if any alcohol is consumed. The alcohol can be contained in mouthwash or marinated food and will still have the same effect on the user. If a person has any type of liver problems, this drug can cause liver failure and death.
Texas law does not provide for any increased punishment after DWI, third offense. If a person presents a DWI, fourth offense or beyond, the typical punishment is confinement in the penitentiary from two (2) to ten (10) years without probation being granted. In some cases SAFP or "Shock Probation" may be granted upon proper request and showing that it is appropriate.
Intoxication Assault: Third degree Felony | Go To Top
"A person commits an offense if the person, by accident or mistake, while operating a .... motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another" {Texas Penal Code §49.07}.
" 'Serious Bodily Injury' means injury that creates a substantial risk of death or protracted loss or impairment of the function of any bodily member or organ".
Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years.Community Service: Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.
Intoxication Manslaughter: Second Degree Felony
"A person commits an offense if the person:
1)...operates a motor vehicle in a public place, and...
2)...is intoxicated and by reason of that intoxication causes the death of another by accident or mistake."Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than twenty (20) years.Community Service: Texas law mandates that a judge order not less than 240 hours nor more than 800 hours.
NOTE: If a person is involved in an accident where there is risk of death or death, a mandatory blood sample will be taken for analysis and use in the prosecution of either Intoxication Assault or Intoxication Manslaughter.
Administrative License Revocation Law (ALR) in Texas
Automatic License Revocation
Texas is one of many states to have an implied consent law. This law states that each person who has applied for and been granted a license to operate a motor vehicle on a public roadway has impliedly consented to providing a specimen of breath or blood if arrested for DWI and provided with the applicable consequences of refusal to submit to testing (Texas Transportation Code §724). Texas appellate courts have also held that an individual does not have the right to consult with an attorney before making the decision to refuse or provide a requested specimen. If there was an accident which produced serious life-threatening injury or possibility of death, a citizen can be compelled to provide the requested sample.
Substantial and significant changes in how suspensions under implied consent violations went into effect January 1, 1995. Each year the Texas Legislature meets, the topic of DWI is addressed in some fashion. Significant changes in this law removed jurisdiction from Justice of the Peace Courts (J.P.) And established a new bureaucracy called the State Office of Administrative Hearings (SOAH). This bureaucracy is staffed by "pseudo-employees" of the Texas Department of Public Safety (TDPS) and given the direct objective to increase the number of license suspensions for persons refusing to provide the requested sample of breath or blood. This new law also added suspension for providing a specimen upon request that indicated an alcohol concentration above the legal limit (0.08 gm/210 l - breath or 0.08 gm/100 ml - blood). Another major change in the prior law withheld from the SOAH Administrative judge, the authority to "probate" or "suspend" any period of license suspension that was ordered. As a result, the TDPS objective of suspending more licenses has been achieved.
The burden of proof at the ALR hearing is on the Department of Public Safety. The following elements must be proven only by a preponderance of the evidence and not beyond a reasonable doubt as in criminal matters:
1.Refusal to Provide Specimen.
2.That reasonable suspicion to stop or probable cause to arrest the Defendant existed.
3.That probable cause existed that the Defendant was driving or in actual physical control of a motor vehicle in a public place while intoxicated.
4.That the Defendant was placed under arrest and was offered an opportunity to give a specimen of breath or blood under the provisions of Texas Transportation Code Chapter 724 AND...
5...that the Defendant refused to give a specimen on request of the officer.
It is important to note that "refusal" for purposes of suspension is any failure to provide the requested specimen for any reason. Examples of what courts have deemed refusal are: requesting an attorney, insufficient sample as measured by the machine, failure to make decision in a timely manner, etc.
Providing a Specimen of 0.08 or Greater
As stated earlier, providing any sample that yields an alcohol concentration of 0.08 or greater can also result in the suspension of driving privileges under the current Texas law. The issues to be proven at a failure hearing are:
1.That reasonable suspicion to stop the Defendant or probable cause to arrest the Defendant existed AND...
2...that the Defendant had an alcohol concentration of a level specified in §49.01 of the Texas Penal Code while driving or in actual physical control of a motor vehicle in a public place.
Without any prior alcohol or drug related contacts occurring after January 1, 1995
the periods of suspension are:
| Age of Driver | Refusal Penalty | Failure Penalty |
|---|---|---|
| 21 or Older | 90 days | |
| Prior Contact w/in 5 years |
180 days-1 year | 120-180 days |
| Minor(<21 at arrest) | 120 days | 60 days |
| Prior Contact w/in 5 years. |
180 days-1year | 120-180 days |
NOTE:"Prior alcohol/drug related enforcement contact" used to lengthen the period of suspensions state above is defined as " a driver's license suspension, disqualification, or prohibition order under the laws of this state or any other state resulting from:
1...a conviction of driving while intoxicated or..."
2...a refusal to proved a requested specimen or..."
3...providing a specimen showing an alcohol concentration of a level specified in §49.01 Texas Penal Code ( alcohol concentration > 0.08)..."
Because of an agreement with the Texas Legislature and DPS, for purposes of "prior alcohol/drug related contacts" occurring before January 1, 1995 cannot be used to lengthen the period of suspension.
Hearing Request Provisions
WARNING !! The ALR suspension is AUTOMATIC...UNLESS you request a hearing on the issue, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency on a Department of Public Safety approved form (generally received on the day of arrest). If a hearing has not been timely requested, the suspension will automatically begin on the fortieth (40th) day after notice was received. If a hearing is requested, no action will be taken regarding suspension until after the hearing and all appeals have occurred. (Call our office immediately for assistance if you think your license is at risk- 888-220-5720)
Reinstatement of Drivers License After Suspension
If a suspension is ordered either automatically or after hearing, a driver must submit a reinstatement fee of $100.00 to TDPS before the license will be reinstated. I advise my clients to send their fee to TDPS as soon as they learn that a suspension has been ordered. Again, because of the huge bureaucracy that has been created under the new law, waiting until the 60th or 90th day to submit your reinstatement fee will prolong reinstatement of your license until the fee has been both received and entered on the TDPS computer system.
There is a special TDPS form that must be submitted to reinstate your driving privileges. This form together with the reinstatement fee must be paid by money order, cashier's check or personal check and sent by certified mail, return receipt requested for proper documentation of payment and receipt to:
Driver Improvement and Control Texas Department of Public Safety P.O. Box 15999 Austin, Texas 78761-5999
NOTE: Driving privileges will be suspended INDEFINITELY until the Reinstatement fee has been received and posted on the TDPS computer.
Texas Laws Pertaining to Minors in DWI Cases ("Zero Tolerance")
Effective September 1, 1997, drastic changes in the laws pertaining to minors were made by the Texas Legislature in response to the increased frequency of arrests involving minors and alcohol. This law is new and has not been subject to appellate review at this time. Until these new laws have been tested in the court system, they must be taken at face value and challenged on all levels. I have included the verbatim law as enacted by the Legislature and offered it here for your review and thought.
{All citations are taken from the Texas Alcoholic Beverage Code, Chapter 106.}
106.02. Purchase of Alcohol by a Minor
(a) A minor commits an offense if the minor purchases an alcoholic beverage. A minor does not commit an offense if the minor purchases an alcoholic beverage under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.
(b) An offense under this section is punishable as provided by Section 106.071.
106.025. Attempt to Purchase Alcohol by a Minor
(a) A minor commits an offense if, with specific intent to commit an offense under Section 106.02 of this code, the minor does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
(b) An offense under this section is punishable as provided by Section 106.071.
106.03. Sale to Minors
(a) A person commits an offense if with criminal negligence he sells an alcoholic beverage to a minor.
(b) A person who sells a minor an alcoholic beverage does not commit an offense if the minor falsely represents himself to be 21 years old or older by displaying an apparently valid Texas driver's license or an identification card issued by the Texas Department of Public Safety, containing a physical description consistent with his appearance for the purpose of inducing the person to sell him an alcoholic beverage.
(c) An offense under this section is a Class A misdemeanor.
106.04. Consumption of Alcohol by a Minor
(a) A minor commits an offense if he consumes an alcoholic beverage.
(b) It is an affirmative defense to prosecution under this section that the alcoholic beverage was consumed in the visible presence of the minor's adult parent, guardian, or spouse.
(c) An offense under this section is punishable as provided by Section 106.071.
(d) 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 adjudication. For the purposes of this subsection:
(1) an adjudication under Title 3, Family Code, > [FN1] that the minor engaged in conduct described by this section is considered a conviction of an offense under this section; and
(2) an order of deferred adjudication for an offense alleged under this section is considered a conviction of an offense under this section.
106.041. Driving Under the Influence of Alcohol by Minor
(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 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 adjudication 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.
106.05. Possession of Alcohol by a Minor (MIP)
(a) Except as provided in Subsection (b) of this section, a minor commits an offense if he possesses an alcoholic beverage.
(b) A minor may possess an alcoholic beverage:
(1) while in the course and scope of the minor's employment if the minor is an employee of a licensee or permittee and the employment is not prohibited by this code;
(2) if the minor is in the visible presence of his adult parent, guardian, or spouse, or other adult to whom the minor has been committed by a court; or
(3) if the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.
(c) An offense under this section is punishable as provided by Section 106.071.
106.06. Purchase of Alcohol for a Minor; Furnishing Alcohol to a Minor
(a) Except as provided in Subsection (b) of this section, a person commits an offense if he purchases an alcoholic beverage for or gives or with criminal negligence makes available an alcoholic beverage to a minor.
(b) A person may purchase an alcoholic beverage for or give an alcoholic beverage to a minor if he is the minor's adult parent, guardian, or spouse, or an adult in whose custody the minor has been committed by a court, and he is visibly present when the minor possesses or consumes the alcoholic beverage.
(c) An offense under this section is a Class B misdemeanor.
106.07. Misrepresentation of Age by a Minor
(a) A minor commits an offense if he falsely states that he is 21 years of age or older or presents any document that indicates he is 21 years of age or older to a person engaged in selling or serving alcoholic beverages.
(b) An offense under this section is punishable as provided by Section 106.071.
106.071. Punishment for Alcohol-Related Offense by Minor
(a) This section applies to an offense under Section 106.02, 106.025, 106.04, 106.05, or 106.07.
(b) Except as provided by Subsection (c), an offense to which this section applies 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 to which this section applies, the offense is punishable by:
(1) a fine of not less than $250 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:
(1) the court shall order a minor convicted of an offense to which this section applies to perform community service for:
(A) not less than eight or more than 12 hours, if the minor has not been previously convicted of an offense to which this section applies; or
(B) not less than 20 or more than 40 hours, if the minor has been previously convicted once of an offense to which this section applies; and
(2) the court shall order the Department of Public Safety to suspend the minor's driver's license or permit or, if the minor does not have a driver's license or permit, to deny the issuance of a driver's license or permit for:
(A) 30 days, if the minor has not been previously convicted of an offense to which this section applies;
(B) 60 days, if the minor has been previously convicted once of an offense to which this section applies; or
(c) 180 days, if the minor has been previously convicted twice or more of an offense to which this section applies.
(e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol.
(f) For the purpose of determining whether a minor has been previously convicted of an offense to which this section applies:
(1) an adjudication under Title 3, Family Code, > [FN1] that the minor engaged in conduct described by this section is considered a conviction under this section; and
(2) an order of deferred adjudication for an offense alleged under this section is considered a conviction of an offense under this section.
106.09. Employment of Minors
(a) Except as provided in Subsections (b) and © of this section, no person may employ a person under 18 years of age to sell, prepare, serve, or otherwise handle liquor, or to assist in doing so.
(b) A holder of a wine only package store permit may employ a person 16 years old or older to work in any capacity.
(c) A holder of a mixed beverage permit may employ a person under 18 years of age to work in any capacity other than the actual selling, preparing, or serving of mixed beverages.
(d) The fact that a person is 18, 19, or 20 years of age is not a ground for refusal of an original or renewal permit or license issued under Chapter 35 or 73 of this code, provided that such a person to whom a permit or license is issued may carry out the activities authorized by those chapters only while in the actual course and scope of the person's employment.
106.115. Attendance at Alcohol Awareness Course; License Suspension
(a) On conviction of a minor of an offense under Section 106.02, 106.025, 106.04, 106.041, 106.05, or 106.07 the court, in addition to assessing a fine as provided by those sections, shall require a defendant who has not been previously convicted of an offense under one of those sections to attend an alcohol awareness program approved by the Texas Commission on Alcohol and Drug Abuse. If the defendant has been previously convicted once or more of an offense under one or more of those sections, the court may require the defendant to attend the alcohol awareness course. If the defendant is younger than 18 years of age, the court may require the parent or guardian of the defendant to attend the program with the defendant.