What Constitutes As Driving While Intoxicated in Texas?
According to Texas Penal Code § 49.04, an individual is guilty of DWI if he or she operates a motor vehicle in a public place, while intoxicated. In Texas, an individual is considered intoxicated if he or she no longer has normal control over his or her mental or physical faculties, due to the consumption of drugs and/or alcohol (Tex. Pen. Code Ann. § 49.01).
An individual can also be considered intoxicated if a chemical test shows that their blood alcohol concentration (BAC) is .08 or higher. If an individual’s BAC is measured above the legal limit, he or she will automatically be arrested, regardless of their ability to demonstrate normal control over their mental or physical faculties.
Austin Police and Texas highway patrol officers may use chemical tests, including breath tests, blood tests and field sobriety tests to determine whether you have an excessive BAC. It is your right to refuse a DUI test, unless police obtain a warrant.
However, when you refuse a test, your license is suspended. You are entitled to an administrative license revocation hearing, where you may contest the suspension along with your legal counsel, if you request it quickly enough.
Back to Top
BAC Chart
In Texas, the legal limit is to have a blood-alcohol concentration (BAC) level of .08. It’s important to understand that men and women process alcohol differently and the heavier you are the harder it will be to raise your BAC. In addition, alcohol is technically a toxic chemical to our body, so it takes a while for your metabolism to process it. So, that means it takes some time for the effects to start kicking in. What will usually happen is a person will have a few drinks, feel fine, and then decide to drive. While driving their blood alcohol will start to increase as their body is processing the alcohol. In the end, this causes relatively sober drivers to become inebriated and then ultimately pulled over by law enforcement.
Number of Drinks Per Hour |
100lbs |
120lbs |
140lbs |
160lbs |
180lbs |
200lbs |
220lbs |
240lbs |
| M/F |
M/F |
M/F |
M/F |
M/F |
M/F |
M/F |
M/F |
| 1 drink in 1 hour |
.02/.03 |
.02/.02 |
.01/.02 |
.01/.01 |
.00/.01 |
.00/01 |
.00/.00 |
.00/.00 |
| 1 drink in 2 hours |
.01/.02 |
.00/.01 |
.00/.00 |
.00/.00 |
.00/.00 |
.00/.00 |
.00/.00 |
.00/.00 |
| 1 drink in 3 hours |
.00/.01 |
.00/.00 |
.00/.00 |
.00/.00 |
.00/.00 |
.00/.00 |
.00/.00 |
.00/.00 |
| 2 drinks in 2 hours |
.03/.04 |
.03/.04 |
.02/.03 |
.01/.02 |
.01/.02 |
.00/.01 |
.00/.00 |
.00/.00 |
| 2 drinks in 3 hours |
.02/.03 |
.01/.03 |
.00/.01 |
.00/.01 |
.00/.00 |
.00/.00 |
.00/.00 |
.00/.00 |
| 2 drinks in 1 hour |
.06/.07 |
.05/.06 |
.04/.05 |
.03/.04 |
.03/,03 |
.02/.03 |
.02/.02 |
.02/.02 |
| 3 drinks in 3 hours |
.06/.09 |
.05/.06 |
.03/.05 |
.02/.03 |
.01/.03 |
.01/.02 |
.00/.01 |
.00/.01 |
| 3 drinks in 2 hours |
.08/.10 |
.07/.09 |
.05/.06 |
.04/05 |
.03/.04 |
.02/.03 |
.02/.03 |
.01/.02 |
| 3 drinks in 1 hour |
.10/.12 |
.08/.10 |
.07/.08 |
.06/.07 |
.05/.06 |
.04/.05 |
.04/.05 |
.03/.04 |
| 4 drinks in 4 hours |
.09/.11 |
.06./.08 |
.04/.06 |
.03/.05 |
.02/.03 |
.01/.02 |
.00/.02 |
.00/.01 |
| 4 drinks in 3 hours |
.10/.13 |
.08/.10 |
.06/.08 |
.05/06 |
.03/.05 |
.03/.04 |
.02/.03 |
.01/.03 |
| 4 drinks in 2 hours |
.12/.15 |
.09/.12 |
.08/.10 |
.06/.08 |
.05/.07 |
.04/.06 |
.04/.05 |
.03/.04 |
| 5 drinks in 5 hours |
.11/.14 |
.08/.11 |
.04/.08 |
.04/.06 |
.02/.04 |
.01/.03 |
.00/.02 |
.00/.00 |
| 5 drinks in 4 hours |
.13/16 |
.09/.12 |
.09/.10 |
.05/.07 |
.04/.06 |
.03/.05 |
.02/.04 |
.01/.03 |
| 5 drinks in 3 hours |
.14/.18 |
.11/.14 |
.07/.09 |
.07/.09 |
.06/.08 |
.05/.06 |
.04/.05 |
.03/.04 |
| 5 drinks in 2 hours |
.16/.19 |
.13/16 |
.10/.13 |
.09/.11 |
.07/.09 |
.06/.08 |
.05/.07 |
.00/.00 |
Back to Top
Proving Actual Physical Control in Austin DWI Cases
In order to be charged with driving while intoxicated in Texas, the prosecution must be able to show that the defendant was in actual physical control of the vehicle at the time of the offense. This is easily provable in cases where an officer actually saw the defendant driving the vehicle before he or she conducted a traffic stop.
It is important to note that you don’t actually have to be driving the vehicle in order to have actual physical control over it. Common factors used to determine actual physical control in Texas include:
- Has the vehicle been recently driven, is it drivable?
- Where the defendant was in relation to the vehicle (in or on the vehicle)
- Whether or not the defendant was in the driver’s seat
- Were the keys in the ignition, or otherwise in the defendant’s possession?
Although individuals can be charged even if they were not actively driving the vehicle, proving actual physical control tends to be difficult. With the help of an experienced DWI lawyer in Austin, you may be able to successfully argue that you were not in actual physical control of the vehicle at the time you were charged with the offense.
Back to Top
What is The Punishment for DWI in Texas?
The penalties for a drunk driving conviction depend largely upon the circumstances surrounding the case, as well as whether or not the defendant has any prior DWI convictions. These penalties are as follows:
First DWI Conviction
First-time DUI offenders will be charged with a Class B misdemeanor and can be sentenced to between 72 hours and 180 days in jail, and/or ordered to pay a fine of up to $2,000. Individuals who are convicted of this offense can also lose their driving privileges for up to a year. A first time conviction also carries annual surcharges ranging from $1,000 to $2,000 per year for three years.
1st Conviction with BAC .15 or Greater
The charges for a first offense can be enhanced to a Class A misdemeanor if a chemical test showed the defendant’s blood alcohol content level was 0.15 or higher, which carries roughly the same penalties as a conviction for a second DWI.
Second DWI Conviction
As a class A misdemeanor, this offense could result in between 30 days to a year in jail, the loss of driving privileges for up to two years, and/or a fine of up to $4,000. A second DWI conviction also carries annual surcharges of ranging from $1,000 to $2,000 a year for three years.
Third DWI Conviction
A third drunk driving offense, or any DUI-related offense after your second, is considered a third degree felony, and is punishable by between two and 10 years in prison, the loss of driving privileges for up to two years, and/or up to a $10,000 fine. Annual surcharges can range up to $2,000 per year for three years.
Other related penalties can include probation, community supervision, community service, ignition interlock devices, drug and alcohol education courses, DWI school, annual surcharges and additional court fees and fines. Also, a DWI conviction can negatively impact a defendant’s life after they have served their sentence. For instance, the defendant may have problems with retaining employment if he or she is a commercial driver because they can lose their license. If you have been charged with DWI or a DWI-related offense, having legal representation is essential.
Back to Top
Texas DWI Surcharges
In addition to the criminal penalties you face if convicted of DWI, the State of Texas will assess a mandatory annual surcharge fee to be paid to the Texas Department of Public Safety. This administrative fee is paid for a period of three years as a condition of maintaining your driver’s license. Failure to pay the surcharges or enter into a payment agreement will result in the automatic suspension of your license until all payments are made.
The surcharges associated with a DWI conviction depend on whether this is your first DWI, second DWI or any subsequent DWI, or whether you are shown to have had a blood alcohol concentration of .16 or higher.
The Texas DWI surcharges, to be paid to the Texas Department of Public Safety, are as follows:
- Driving While Intoxicated First Offense — $1,000 annual surcharge ($3,000 total)
- Driving While Intoxicated Second or More — $1,500 annual surcharge ($4,500 total)
- DWI with Blood Alcohol Concentration of .16 or more— $2,000 annual surcharge ($6,000 total)
Back to Top
Types of DWI Offenses in Texas
Below are other types of common DWI offenses in Texas:
- Underage DWI – An underage DWI is classified as a Class C misdemeanor which is punishable by a fine of up to $500, attend alcohol awareness classes, 20 to 40 hours of community service, and having their driver’s license suspended.
- Intoxication Assault – This offense is classified as either a third-degree or second-degree felony depending on the level of bodily injury. A felony charge can limit an individual’s housing, employment, and educational opportunities.
- Intoxication Manslaughter – A first-time DUI Manslaughter offense is a second-degree felony. The offense involves an intoxicated or impaired driver operating a motor vehicle and the unintentional or accidental death of another person because of the intoxication.
- DWI with a Child Passenger – Texas Penal Code §49.045 addresses DWI with a child passenger. The law indicates that a person commits the offense when he or she is intoxicated while operating a motor vehicle in a public space and the passenger is younger than fifteen (15) years of age.
- Drug Related DWI – Per Tex. Pen. Code §49.09 a person can be charged with a DWI if he or she was driving or operating a motor vehicle under the influence of a controlled substance.
Back to Top
What is the difference between a DUI and a DWI?
Many people use the terms DUI and DWI interchangeably but there are very distinct legal differences between these offenses under Texas law. DUI or Driving Under the influence is a crime that is specific to minors who have gotten behind the wheel after consuming any alcohol. Because it is illegal for minors to consume alcohol, any discernable amount of alcohol in their system can lead to a DUI charge. The legal limit for minors is ZERO. Even under circumstances where their blood alcohol content (BAC) is below .08, they are violating the law and at risk of being arrested. DUIs, while considered less serious than DWIs, can still leave a serious blemish to your criminal record.
DWI or Driving While Intoxicated, represents the more serious charge on the impired driving spectrum because of its implications. In order to be charged with a DWI, there must be sufficient evidence to show that you were operating a motor vehicle in a public place while intoxicated. Intoxication is defined in Texas as not having the normal use of mental or physical faculties by reason of the introduction of alcohol, controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration BAC of 0.08 or more. One reason why DWIs are considered more legally concerning is because unlike with DUIs, DWIs are overseen by the Texas Penal Code.
While individuals over the age of 21 cannot be charged with a DUI, minors can be charged with a DWI. Even though no amount of alcohol is legal for minors, if they happen to be intoxicated (>.08 BAC), they can be charged with both a DUI (for having any alcohol in their system) and a DWI (for being intoxicated).
Back to Top
What happens after a DWI arrest?
Each case is different, but there are a few key similarities between most DWI arrests. If after submitting to a blood/breath test the police determine that your BAC is above the legal limit, your license will be immediately suspended. This is also true if you refuse to submit to testing. In an instance where you refuse to be tested, officers will usually obtain a warrant from a judge to draw blood for analysis.
From the point of arrest, your license will be seized, and you will be notified of impending license suspension. You have 40 days from the initial notice until your license is suspended, during which the notice of suspension will function as a temporary driving permit. If you do not file an appeal within the first 15 days after receiving the notice, you cannot dispute the suspension of your license and it will be automatically suspended.
You can be charged with different charges or degrees of DWI depending on the severity of your intoxication, your prior legal history, or if you have an open container in your vehicle. Obtaining an experienced DWI lawyer is critical to protecting your future.
Back to Top
Will I go to jail for a DWI? Can I get probation for a DWI?
While being arrested almost always implies that you will spend at least a brief amount of time inside a jail cell, getting a DWI does not necessarily mean you will be sentenced to time in jail. If it is your first offense, it is much more likely that you will receive a probation judgement. DWI probation in Texas is usually between 15 months to 2 years. During this term of probation, you will be required to attend monthly probation meetings with your probation officer. You will also likely have to attend DWI classes, complete a Mother’s Against Drunk Driving Victim Impact Panel and pay a fine as well as any court costs.
If you have previous offenses, particularly previous DWI offenses, you are more likely to spend time in jail as determined by a judge or jury. Even if you receive probation for a second or third DWI offense, the Penal Code requires a minimum amount of time served in jail as well as a fine.
Back to Top
Can a DWI Conviction be Expunged in Texas?
Unfortunately, the state of Texas does not allow offenders to expunge a DWI conviction from their criminal record. Even if you’ve been convicted of a lesser charge, you will not be able to remove your DWI arrest from your record. Juveniles who were convicted of DWI may be eligible for expunction if they’ve completed their punishment and do not have any other alcohol-related offenses on their record since. Other than that, the only way you can expunge your DWI arrest and charge off your record is if your case resulted in one of the following outcomes:
- The charges were never filed
- The case was dismissed by the court
- You were found not guilty of the charge
- Your DWI conviction was overturned on appeal
Back to Top
How Much is Bail for DWI in Texas?
Texas utilizes a bail bond system, which allows offenders to leave the jailhouse early and return to their daily lives while the case develops. However, in order to be eligible for early leave, the offender must post bail. The term “posting bail” simply means the offender is paying the court a sum of money as collateral as a promise they will attend all upcoming court dates.
The same procedure stands true for those charged and arrested for DWI. It’s difficult to accurately predict a person’s bail as the state processes thousands of DWI arrests each year and most of them have a specific bail set based on the crime and their criminal record. Other factors included in determining bail include whether the offender complied with BAC testing, if they were violent or attempted to escape arrest, or whether someone was killed or serious injured as a result of the offender’s drunk driving.
For most first-time DWI offenders, their bail will be set somewhere between $1,500 and $7,500. Travis County has no bail schedule, so in the end it will be the judge who decides it ultimately. Once the bail is set and the case has been reviewed, you can post bond and be released early on condition you appear at all court dates.
Back to Top
How Much Will a DWI Cost in Texas?
Not only can a DWI charge cost you opportunities in the future, it can cost a pretty penny. Most offenders don’t think about the expenses surrounding a DWI conviction until they’re faced with the bill. Generally speaking, the total cost of a first-time DWI conviction can reach up to $15,000 to $20,000, and in some cases even more.
If you’re convicted of DWI, you should expect to pay the following:
- Court fees
- Punishment fees
- Probation fees
- Restitution fees
- Ignition interlock device installation and fees
- Bail
- Increased insurance rates
- SR-22 fees
- Driver’s license surcharges
- Alcohol education program fees
- Impound fees
Back to Top
Is it Smart to Get a Lawyer for DUI?
It’s your constitutional right to represent yourself against DWI charges. However, if you want to avoid the statutory penalties and the long-term impact of conviction, it’s highly recommended you seek legal counsel. The chances of your charges reducing or being dismissed altogether increase significantly with a lawyer by your side. An experienced DWI attorney can analyze every aspect of your case and develop a defense plan to fight your charges.
It might be tempting to bypass the attorney option and attempt to resolve your DUI charges on your own. Although you can do this, an DWI defense attorney understands all the intricacies of the law and can provide the best possible defense for you. They can undermine the prosecution’s argument by challenging BAC test results, the testimony of the officer, and other facts of the case. Plus, your criminal defense attorney can help you maintain your driver’s license, so your life isn’t put on hold during your DWI case. They can achieve this by successfully representing you during an administrative license review hearing.
If the facts of the case aren’t in your favor, your defense attorney can utilize their negotiation skills to hopefully secure a desirable plea deal. They may be able to bargain down your DUI sentence in exchange for a guilty plea for a lesser crime such as reckless driving. While dismissal is the ultimate goal of an attorney, reducing a charge to much lighter penalties may sometimes be the best possible result for the offender.
After the case is resolved, your attorney can help you further by expunging your DWI arrest if you were never convicted. That way no one, not even government agencies, will be able to discover your criminal record. You will also be legally allowed to state you’ve never been arrested or charged with a crime after your record has been expunged.
Back to Top
Will My Employer Be Notified of My Arrest?
Getting arrested for DWI may just be the beginning of your trouble. If the charges turn into a conviction, you are now faced with court costs, steep fines, and jail time. A common question many defendants have after a conviction is: will my employer be notified of my arrest?
You may think it is unnecessary for the courts to notify your job, but in many careers, Texas law takes a different stance. There are some careers where notification of your employer is not an option. Any career which requires you have a commercial driver’s license (CDL) requires notification to the employer. This includes, but is not limited to:
- Bus Drivers
- Delivery Drivers
- Chauffeurs
- Truck Drivers
- Taxi Drivers
Employers for these type of positions generally run checks on their employees periodically, so it is best to inform them before they find out.
Back to Top
How Long Does a DWI Stay on Your Record?
The law used to be that you could never seal a DWI conviction in Texas, regardless of whether you were charged with your first DWI or intoxication manslaughter. Once you obtained DWI conviction, it remained on your record permanently. That all changed on September 1, 2017 when a new law went into effect (HB 3016). HB 3016 now allows first-time DWI offenders to seal the charges if they meet certain requirements.
To find out if you qualify to have your DW record sealed, contact skilled criminal defense attorney Kevin Bennett at The Law Office of Kevin Bennett today. He will be able to examine your case and figure out the best route for you to take.
Back to Top
Additional Resources
Travis County Counseling & Education Services (TCCES) – Follow the link to learn about educational services and programs offered. The Counseling & Education Services (CES) provides alcohol and drug courses and related programs. Additionally, the TCCES promotes public safety by offering rehabilitation services to adults and juveniles.
Texas Implied Consent – View Texas implied consent law which outlines the penalties for refusing a test and an individual’s consent to a test in exchange for driving privileges.
Texas Department of Transportation Statistics – The Total and DUI (Alcohol) Fatal and Injury Crashes Comparison report demonstrate the total fatal crashes and DUI fatalities across the state, urban, and rural areas. View the report to learn about the number of injury-related crashes, DWI fatalities and related accidents for 2019.
DWI Laws in Texas – Visit the official website for the Texas Penal Code to read their driving while intoxicated (DWI) and other alcohol-related laws in the state. Access the site to read their penalties and other relevant information.
Texas Department of Motor Vehicles – Visit the official website for the Texas Department of Motor Vehicles. On the site, you can renew your driver license’s, register your vehicle, update your address and much more.
Back to Top
Austin DWI Lawyer | Travis County, TX
Contact Kevin Bennett today to discuss the circumstances surrounding your DUI charges in Travis County, Pflugerville, Lago Vista, Lakeway and the surrounding areas. As a qualified criminal defense attorney, Kevin Bennett will thoroughly review the facts surrounding your case, and use his knowledge of Texas DWI law and criminal legal procedure to weaken the prosecution’s case.
Call The Law Office of Kevin Bennett today at (512) 476-4626 if you have been arrested for driving under the influence of alcohol or drugs. Your initial consultation is free, and it will begin the process of defending your freedom and protecting your driving privileges. Don’t wait another moment to speak to an experienced DWI Austin attorney as soon as possible to protect your future.
Back to Top
