Understanding the Difference Between DWI and DUI in Texas

Date Published 8 · 29 · 22

I am often asked what is the difference between Driving While Intoxicated (DWI) and Driving Under the Influence (DUI) in Texas.  The answer to the question depends on the age of the person and how much alcohol the individual has consumed.    In Texas, a person commits the offense of DWI when the person operates a motor vehicle in a public place while intoxicated.  However, a DUI is committed when someone under the age of 21 has a detectable amount of alcohol while operating a motor vehicle in a public place.   Therefore, it is possible for someone under the age of 21 to commit the offense of DWI and DUI.  However, it is impossible for someone over the age of 21 to commit the offense of DUI.    

Driving While Intoxicated (DWI) 

  1. The offense of DWI 

A driver commits the offense of Driving While Intoxicated (DWI) in Texas if the person is intoxicated while operating a motor vehicle in a public place.  There are three ways someone can be intoxicated under the law.  A person will be considered intoxicated when he or she has: 

  1. lost the normal use of his or her mental faculties by the reason of introduction of alcohol, a drug, a controlled substance, a dangerous drug, a combination of two or more of those substances or any other substance into the body; 
  1. lost the normal use of his or her physical faculties by the reason of introduction of alcohol, a drug, a controlled substance, a dangerous drug, a combination of two or more of those substances or any other substance into the body; or 
  1. has an alcohol concentration of 0.08 or more. 
  1. Consequences of a DWI in Texas 

The consequences of a DWI in Texas depends on the number of prior DWI convictions and the alcohol concentration of the individual.   

  1. First DWI and Alcohol Concentration Less than 0.15 

If someone is convicted of a first DWI and has a blood or breath alcohol concentration less than 0.15 then the punishment is up to six months in jail and a fine not to exceed $2,000.00. 

  1. Second DWI or First DWI with Alcohol Concentration of 0.15 or More 

If someone is convicted of a second DWI or if it is the person’s first DWI and the individual has an alcohol concentration equal to or greater than 0.15 the punishment is up to one year in jail and a fine not to exceed $4,000.00 

  1. Third or More DWI 

If someone has been convicted of two or more DWI’s prior to the date of the commission of the current DWI then it is punished as a third-degree felony with a range of punishment of up to 10 years in prison and a fine not to exceed $10,000.00. 

  1. Super Fine 

A person who has been finally convicted of a DWI can face super fines as well.  A person is finally convicted when the individual has been sentenced to a definite term in jail or prison.  If someone is placed on probation, deferred adjudication or pretrial diversion then the super fine is not imposed. 

There are three different super fines depending on the number of DWIs the person has in the past 36 months prior to the commission of the DWI and their alcohol concentration. 

  1. First conviction within a 3-year period and alcohol concentration less than 0.15 

If someone is finally convicted of a DWI without any prior final convictions for DWI within a 3-year period and the person has an alcohol concentration less then 0.15 then the court is to impose an additional fine of $3,000.00.  

  1. Second conviction within a 3-year period and alcohol concentration less than 0.15 

If a person is finally convicted of a DWI and has a prior DWI conviction within a 3-year period and an alcohol concentration less than 0.15 then the court is to impose an additional fine of $4,500.00. 

  1. Alcohol concentration equal to or greater then 0.15 

If someone is finally convicted of a DWI and the person has an alcohol concentration of 0.15 or greater at the time of the test then the court is to impose an additional super fine of $6,000.00. 

Driving Under the Influence (DUI) 

  1. The offense 

A person commits the offense of Driving Under the Influence (DUI) if the person is a minor and operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system.  Therefore, only someone under the age of 21 can commit the offense of DUI.  Also, the person only needs to have a detectable amount of alcohol.  The person does not need to be intoxicated.  Therefore, a person under the age of 21 could be charged with DUI if the individual is operating a motor vehicle in a public place and only has a slight odor of alcohol on his or her breath.  

  1. Consequences of DUI in Texas 

In Texas, the consequences of a DUI conviction depends on the number of prior DUI convictions the person has and the age of the person arrested.  A first DUI is a class c misdemeanor and punishable by fine only.  However, if the minor (under the age of 21) is not a child (under the age of 17) and has been convicted of two DUIs in the past, then the person could be fined between $500 and $2,000.00 and could be confined in jail for not more than 180 days. 

There is also required community service for someone convicted of DUI.  The community service must be related to education about or prevention of misuse of alcohol.  A person must complete 20-40 hours of community service if it is there first conviction.  If it is their second conviction then the person must complete 40 to 60 hours of community service.   

Test your understanding 

Can someone over the age of 21 be DUI and DWI in Texas? In Texas, a minor commits the offense of Driving Under the Influence if he or she is operating a motor vehicle in a public place and has a detectable amount of alcohol.  Since you must be under the age of 21 to commit the offense of DUI it is not possible for someone over the age of 21 to commit the offense.  Therefore, it is not possible for someone over the age of 21 to commit DUI and DWI in Texas. 

Can someone under the age of 21 be DUI and DWI in Texas?  In Texas a person commits the offense of Driving While Intoxicated if the person is operating a motor vehicle in a public place while intoxicated.  A minor is DUI in Texas if the person is operating a motor vehicle in a public place and have a detectable amount of alcohol on their person.  A DUI does not require the person to be intoxicated.  However, a minor who is DWI because of the introduction of alcohol will have a detectable amount of alcohol on their person.  Therefore, a person who is under the age of 21 can be DUI and DWI in Texas.  However, it is very unusual for an officer to arrest a minor for DWI and DUI at the same time.  Usually, the officer will choose one offense to charge the person with.  Unfortunately, the officer usually chooses DWI since it is the greater offense. 

Can someone under the age of 21 be DUI but not DWI in Texas? In Texas, a minor commits the offense of DUI if they are operating a motor vehicle in a public place and have a detectable amount of alcohol.  A person commits the offense of DWI if the person is operating a motor vehicle in a public place while intoxicated.  Therefore, if a minor is operating a motor vehicle in a public place, has a detectable amount of alcohol on his breath, but is not intoxicated then the person could be DUI and not DWI. 

I hope this article has helped you understand the difference between DWI and DUI in Texas.  If you have been arrested or charged with either DWI or DUI and would like to schedule an initial strategy session to discuss your case with me, I invite you to call my office at 361-882-7788 to schedule your initial strategy session. 

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