While it might not be the most serious of Texas criminal laws, intoxication offenses are most common and frequently updated. The primary section of the state penal code is chapter 49 of the penal code, specifically Sec. 49.01. As the law does, let’s make sure we define our terms. It may seem obvious, but Texas represents Intoxicated as “not having the normal use of mental or physical faculties because 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.”
Difference Between DWI vs DUI
The law in Texas around intoxication uses DWI (driving while intoxicated) instead of DUI (driving while under the influence) for a particular reason. In Texas, DUI is a term used for juveniles driving under the influence of any substances (Texas has a zero-tolerance policy for minors and alcohol). So for this page (and future updates to this page), we’re only going to focus on DWIs and their penalties in the state of Texas.
What is the Legal Alcohol Limit in Texas?
If you’re not driving, you can drink as much as you want. However, if you get behind the wheel and are over 21, the legal alcohol limit is .08% BAC. Furthermore, it is .04% for commercial drivers; zero tolerance under age 21. While your metabolism, height, and weight will greatly impact your BAC, the average estimate is usually placed around two beers or one mixed drink. The average rate at which you metabolize alcohol is around one beer per hour. Research shows the “elimination rate varies for individuals but falls between .015 percent to .020 percent per hour, with an average of .018 percent per hour.”
Penalties for Driving While Intoxicated
We assume the penalties for a DWI in Texas are probably why you’re here, so we’ll get to it. Also, be sure to note the indicators for what might make the penalty more severe in the eyes of the court. As always, repeat offenders will get more severe penalties. Also, if you endanger a child or have an excessively high blood alcohol level, expect a harsher sentence.
Penalty For First Offense
If it’s your first time getting a DWI, you’ll be required to spend 72 hours in a holding cell and pay a fine of up to $2,000. There are factors (see below) that can create more severe penalties. Additionally, you can expect to have your license suspended for 90 days.
Now, this is just the penalty for the DWI aspect of the offense; if you’ve committed additional infractions, you can expect to have those added on in addition to these penalties. Furthermore, if you endangered children or had an exceptionally high BAC level, expect to face more severe consequences.
For a second DWI offense, the sentence gets a little more severe, and the state begins to take more aggressive measures towards preventing your ability to drive drunk. Unless extenuating circumstances (which we’ll get to) exist, the second offense is usually not considered a felony in Texas. However, it does carry with it a fine of up to $4,000 and a potential for your license to be suspended for up to 2 years.
Additionally, section (h) of the penal code gives the state the power to prevent you from operating a motor vehicle utilizing technology forcefully. If you’ve been convicted of a DWI in Texas, that forces the defendant (if convicted) to have a device installed in their car that “that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator.”
Essentially, this prevents you from starting the car if a breathalyzer-type device cannot verify that you are sober before starting the vehicle. This device often referred to as an “ignition interlock device,” carries with it some concerns over personal autonomy and personal choice. Nevertheless, as section 521.344 points out, the defendant must have this device installed on their vehicle, but they are prohibited from operating any vehicle that does not have this device installed. Read our more detailed piece on what happens if charged with a second DWI in Texas.
Third DWI In Texas
If you’ve been arrested for a third time for driving while under the influence you’re definitely going to want to retain an attorney in order to minimize the jail time you can expect to receive. While it is important to note that all cases are unique, it’s going to be difficult to convince a judge that you’ve learned your lesson from previous indiscretions. Read more about what happens when you get a third DWI in Texas.
DWI Probation Timeline and What To Expect
Many first-time offenders fear the punitive Texas probation period for driving while intoxicated. However, depending on the circumstances of your case, it may be time-consuming, but it’s not terrible.
How long is Probation for DWI in Texas
The timeframe for probation for a DWI in Texas is from six months to up to two years and can include any of the penalties (as deemed by the court) in the bulleted list in the next section. If you violate your probation but are a first-time offender, the state is most likely to require you to use an ignition interlock device (see above).
DWI Probation Rules
DWI probation in Texas can vary quite a bit based on the details of your case, but we’ll give you a checklist of things you might want to expect.
- Half-hour to full-hour session evaluating your alcohol dependence.
- Three separate four-hour education classes. You have six months to complete all three classes.
- Fines were imposed by the court in the area of $1,000.
- Twenty-four to a hundred hours of community service.
- Ignition interlock device installed in the vehicle, with a notation on driver’s license that only vehicles with this device installed may be driven
- Zero tolerance for future offenses.
- Periodic (usually monthly) meetings with a P.O. (parole officer) assigned to your case.
- One may be required to receive permission prior to leaving the county for any reason.
There’s more, including a prohibition of drugs and alcohol until the prohibition is over and the requirement that one is employed and maintain employment for the entire period of their probation.
Getting A DWI Removed From Your Record
If you’ve had a DWI in Texas, you can actually have it removed entirely from your record or what is called having it “non-disclosed” from your record. However, there are a couple of stipulations. First, you have “never been convicted or placed on deferred adjudication community supervision (probation) for another offense.” Additionally, to the satisfaction of the court, you must have completed any jail-time or community work that the Judge sentenced you to.
The most important factor in getting your offense non-disclosed is whether your citation involved another person. As we’ll get to in the rest of this article, this is one of the primary factors in whether courts will grant lenience. Read more about how to get your DWI non-disclosed from your criminal record in Texas.
Implied Consent Law
Implied consent laws are relevant to DUI and DWI-related offenses because they inform what tests the police can perform on you and provide a constitutional basis for forcing you to submit to them (or be arrested). Implied consent laws essentially say that by getting in and operating a motor vehicle, you agree that you are operating a motor vehicle in the state means you consent to a breathalyzer on the arrest. Since this is not explicitly stated or agreed to, it is deemed “implied consent” on behalf of the driver to law enforcement.
How BAC Impacts Sentencing
In conjunction with virtually every state in America, courts may sentence you to more severe penalties if you have an excessively high blood alcohol level. This may seem logical (the higher the blood alcohol level, the more dangerous/less in control one is) but could also be argued that it’s antithetical to the justice system as the higher the BAC one has, the less in control of their actions they can be said to be.
Where Is Driving While Intoxicated Most Common?
In the state, there are five counties that have been at the top 5 of most citations given for the offense. Bexar County and Travis county have seen decreases in DWI arrest numbers. Meanwhile, Harris and Dallas county, two of the state’s most populous counties, have only seen their numbers increase. DWIs in Houston, the fourth most populous state in the United States and largest in Texas, really weigh down the totals. However the exploding suburbs of Texas, such as the Houston suburb Fulshear, will be something to keep an eye on in future years.
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Is Mandatory Alcohol Treatment Required?
Texas is one of only two states (plus the District of Columbia) that do not require mandatory assessment and/or treatment following an arrest from aDWI. Not that our opinion matters, and something we try to limit, but this is a callback to the antiquated view that if someone gets aDWI then they are an alcoholic.
The other state, in case you were wondering, that does not require mandatory treatment is little Rhode Island.
Child Endangerment Penalties
If you endangered a child, you can expect to have your penalty increased as a result. Merely having a child in the vehicle when being given a DWI citation could be mere grounds for this increased sentence. The police officer who is writing the citation is charged with noting this and will make the Judge aware at the time of arraignment.
When A DWI Becomes A Felony
We’ve discussed already some ways in which the sentence could be worse, but Sec. 49.09 details what are called “Enhanced Penalties” for these intoxicated-related offenses.
(1) The key aspect that tends to make a DWI viewed as a felony in the eyes of the Texas court is the question of whether or not you caused serious bodily harm to someone else.
(2) Additionally, though this may be your first offense in the state of Texas, you’ve committed crimes that are very similar in other states.
Other Vehicles That You Can’t Drive Intoxicated
A common question people ask is whether driving while intoxicated laws apply only to cars or can you get cited for other vehicles as well? The answer is yes, the law doesn’t just apply to cars but all motor vehicles. The keyword here is ‘motor’ and assumes there’s some type of engine pushing the boat. This leaves most sailboats and kayaks free (even though they might not be any safer to operate under the influence).
Can You Get A DWI Driving A Boat?
Yes. The short answer is yes, you can get a DWI for driving a boat while drunk in Texas. The Texas penal code explicitly defines boats (they call them “watercrafts”) for the purpose of addressing this question. For the purposes of this section, the code defines watercraft simply as:
The penalty for this offense is considered a Class B Misdemeanor and carries with it a mandatory 72-hour jail sentence. Rafts, canoes, and kayaks are exempt from this list.
DWI For Flying An Airplane?
As difficult as it may be to believe, section 49.09 of the Texas penal code, subsection (E) states that “an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.”
No Defense For Mentally Incapable
The final two sections of the Texas Penal code covering intoxication deal with the fact that one is not mentally capable or in control of their actions due to intoxication. In other states, this might seem to be a reason why one should not be considered culpable. However not in Texas.
Section 49.10: No Defense
According to section *49.10 of the penal code, “the fact that the defendant is or has been entitled use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.” In other words, defendants may not argue that their ability to access the alcohol and have consumed it is a defense.
*This is what the Texas Penal code actually says.
Section 49.11: No Need To Establish Mental State
Under this, the second to last section of the current Texas criminal code, the state does not have to establish “proof of a culpable mental state is not required for conviction.” Again, this is what the Texas Penal code actually says.
Public intoxication is when a person “commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.” Though substantially different from a DWI (as a motor vehicle is not involved), it is in the same category and therefore worth mentioning here. Public intoxication is only a Class C misdemeanor and therefore only requires a fine of no more than $500 and no imprisonment.
Another area of intoxication law of constant interest is laws concerning open containers in a vehicle. The Texas penal code defines an open container as any “bottle, can, or receptacle” that contains any amount of alcohol and is open. By “open” the law means that the seal is broken, not just that the top is off. This is considered a Class C misdemeanor under Texas law.
History of Texas Intoxication Laws
In virtually every session over the past two decades, intoxication laws and their punishments have been modified or attempted to be modified by the legislature. There’s some terrific literature about the slow adoption of breathalyzers by police departments, however, the real story is how long it has taken state legislatures to realize that it’s a problem.
The scenes of Don Draper driving blackout drunk in the 1960s with the police not seeming to care are actually all true. It wasn’t until disaster struck that states and their police departments began to regulate the behavior.
BAC Gets Defined
In 2005, H.B. 51 regulated the BAC levels at 0.15 (more than double today’s standards). This dates back to guidelines from the early 1930s when the first breathalyzer was invented. Obviously, this change did not stay for long and that brings us to our next bill.
Taking Care of Loopholes (and their own): Darren Medlin and Dwayne Freeto Act
On May 1, 2000, Grapevine police officer Darren Glenn Medlin was killed by a drunk driver. On Sunday, December 17 of 2006 officer Dwayne Freeto was hit by a drunk driver while helping a motorist with a flat tire. At the time, the motorist’s BAC levels were twice the legal limit (at the time 0.15). A military veteran and 34-year old who had only been on the force for nine months, his assailant was sentenced to 13 years in prison. The former was sentenced to 12.5 years.
In 2007, the next legislative session, the Texas legislature passed HB 1212 was proposed that make it a third-degree felony if the person caused the death of another. Additionally, the bill added more penalties if the act was committed against an employee of the state. A couple of years later, H.B. 2908 would further lengthen the protection for peace officers working in an official capacity.
If the Victim is Put in a Vegetative State
House Bill 1199 sought to repair a loophole created by the previous bills that made the offense a felony only if the victim was killed during the accident. This 2011 bill made it a felony if the victim who was hit was put into a persistent vegetative state.
Ignition Interlock is Added As Punishment
On September 1, 2019, H.B. 3582 went into effect, which added the ignition interlock device (see above) to prevent repeat offenders from starting their vehicle. The device detects ethyl on the breath in the same way that a typical breathalyzer does. However, the interlock has an additional feature that relays this signal to a locking mechanism that prevents the engine from turning on.
Penalties For Drinking and Operating an 18-Wheeler
Assuming you have a CDL license, the penalties for drinking and driving an 18-wheeler can be severe. Not only are you liable for all of the previous mentioned criminal penalties, but you will greatly jeopardize your career. If you are convicted of drinking and driving while operating a commercial vehicle, you will lose your CDL license for one year. If you happen to be drinking and driving while operating a commercial vehicle and transporting hazardous chemicals, you lose your license for three years. Finally, if you commit this offense more than once, you can expect to have a lifetime suspension from legally operating a commercial vehicle. Read more about the penalties for being convicted of being under the influence while operating an 18-wheeler.