In Texas, a DWI (Driving While Intoxicated) is already a serious criminal offense that can result in fines, jail time, driver’s license suspension, and long-term consequences. However, when a lawful gun owner is arrested for DWI, the situation becomes even more complex.
Under Texas law, it is normally legal for many citizens to carry a firearm in their vehicle or on their person, provided they meet certain requirements. But if an individual is found to be intoxicated while operating a motor vehicle, that otherwise lawful possession of a firearm can instantly become a separate criminal charge: Unlawful Carry of a Weapon (UCW).
A conviction for DWI combined with UCW can bring harsher penalties, impact Second Amendment rights, and increase the difficulty of resolving the underlying DWI charge.
Texas DWI with Unlawful Carry of a Weapon Attorney
If you were arrested in Austin, Pflugerville, Lakeway, or elsewhere in Travis County for DWI while also carrying a firearm, you need an attorney who understands both criminal defense and firearms law. The Law Office of Kevin Bennett has the resources, courtroom experience, and commitment necessary to defend clients facing these complex dual charges.
Kevin Bennett is an experienced DWI defense attorney in Travis County who will carefully examine the facts of your case, challenge the state’s evidence, and fight to protect your driving privileges and your right to carry firearms. He believes in transparency, keeping clients informed at every step, and pursuing the most favorable outcome possible, even if that means taking your case to trial.
Call The Law Office of Kevin Bennett today at (512) 476-4626 to schedule your free consultation.
Information Center
- Texas Penal Code § 46.02: Unlawful Carry of a Weapon
- Driving While Intoxicated in Texas
- Why Lawful Gun Possession Becomes Unlawful in DWI Cases
- Driver’s License Suspension and Firearm Rights
- Legal Penalties and Consequences of DWI + UCW
- Defenses Against DWI + Unlawful Carry of a Weapon
- Frequently Asked Questions
- Additional Resources
Texas Penal Code § 46.02: Unlawful Carry of a Weapon
Under Texas Penal Code § 46.02, a person commits the offense of Unlawful Carry of a Weapon if they are intoxicated while carrying a firearm outside of certain legal exceptions. This means that even if you lawfully possess a handgun, rifle, or shotgun under normal circumstances, once a DWI arrest occurs, prosecutors can also add UCW charges.
This offense is typically classified as a Class A misdemeanor, but when combined with a DWI, the penalties and consequences often increase in severity.
Driving While Intoxicated in Texas
Under Texas Penal Code § 49.04, a person is guilty of DWI if they operate a motor vehicle in a public place while intoxicated. Intoxication is defined as:
- Loss of “normal use of mental or physical faculties” due to alcohol or drugs, or
- A blood alcohol concentration (BAC) of 0.08 or higher is determined by chemical testing.
If an individual is intoxicated and also carrying a weapon, the firearm charge does not replace the DWI; it is added to it, meaning the accused faces two separate criminal cases arising from one arrest.
Why Lawful Gun Possession Becomes Unlawful in DWI Cases
For most Texans, keeping a firearm in their vehicle or carrying one under state law is perfectly legal. However, once intoxication is alleged, the law presumes the individual no longer has the capacity to responsibly carry a weapon.
This creates a unique scenario:
- Without the DWI arrest, the firearm possession would not be a crime.
- The DWI arrest triggers the UCW charge, even if the gun was stored safely and legally before the stop.
This can feel unfair to many defendants, but it is an established aspect of Texas law—and one that requires skilled legal defense.
Driver’s License Suspension and Firearm Rights
Just as a DWI can lead to automatic driver’s license suspension through the Texas Department of Public Safety (DPS), a UCW conviction can also impact your right to own or carry firearms in the future.
- A DWI alone can suspend your license for 90 days or longer, depending on test refusal or BAC results.
- A UCW conviction can prevent you from legally carrying a firearm, and in some cases, federal law may prohibit gun ownership following certain misdemeanor convictions related to weapons.
Legal Penalties and Consequences of DWI + UCW
When DWI is combined with UCW, defendants face a dual set of penalties:
- DWI Penalties: Jail time, fines up to $2,000 for first offense, driver’s license suspension (90 days or longer), mandatory surcharges, probation, and increased insurance premiums.
- UCW Penalties: Usually charged as a Class A misdemeanor, punishable by up to 1 year in jail and a fine of up to $4,000.
- Collateral Consequences:
- Loss or restriction of firearm rights, including potential federal prohibitions
- A permanent criminal record that cannot be expunged if convicted
- Job loss or difficulty finding new employment, especially in fields requiring background checks
- Higher car insurance rates and DPS surcharges for three years
- Complications in professional licensing, immigration, or child custody matters
When combined, these two charges magnify each other’s impact and make the need for an aggressive legal defense even more urgent.
Defenses Against DWI + Unlawful Carry of a Weapon
Every case is unique, but strong defenses can significantly weaken the prosecution’s position. Some common defenses include:
Illegal Stop or Arrest – The first question is why the police stopped you. If the stop was unlawful or lacked probable cause, then both the DWI and UCW charges may be dismissed.
Challenging Intoxication Evidence – Prosecutors must prove intoxication beyond a reasonable doubt. Defense strategies may include:
- Questioning the reliability of breath or blood tests (improper calibration, chain of custody issues, contamination).
- Highlighting medical conditions or environmental factors that could explain failed field sobriety tests.
- Arguing that observed behavior (like slurred speech or red eyes) was unrelated to alcohol or drug use.
If intoxication cannot be proven, the UCW charge also collapses.
Firearm Possession Was Legal Without DWI – Many defendants carried their firearm lawfully under Texas law. The only factor making the possession “unlawful” is the intoxication allegation. If intoxication is successfully challenged, then the firearm charge no longer stands.
Constitutional Violations – Suppose law enforcement violated your constitutional rights, such as conducting an illegal search of your vehicle or questioning you without proper Miranda warnings. In that case, evidence may be suppressed, severely weakening the case.
Necessity or Safe Storage Defense – In rare cases, the defense may argue that the firearm was secured and did not pose any danger, or that carrying the weapon was necessary for personal protection and unrelated to intoxication.
Frequently Asked Questions
Q: Can I lose my gun rights if I’m convicted of UCW with a DWI?
Yes. Even though UCW is generally a misdemeanor, a conviction can still restrict your ability to carry a firearm in Texas and may trigger federal firearm prohibitions.
Q: Is UCW always charged if I have a gun and get arrested for DWI?
Not always, but prosecutors frequently add UCW charges when a firearm is discovered during a DWI arrest.
Q: What if the gun was locked in my glovebox or trunk?
Even if the firearm was secured, prosecutors may still pursue UCW charges if you were intoxicated. However, this fact can be a strong defense point in court.
Q: Can the DWI and UCW charges be fought separately?
Yes. A skilled defense attorney can challenge each charge individually. Beating the DWI may result in the UCW charge being dismissed as well.
Q: Will my driver’s license be suspended for UCW?
The UCW charge alone does not affect your driver’s license, but the DWI component can result in suspension through DPS administrative proceedings.
Additional Resources
Texas Penal Code – Weapons Offenses: Texas Penal Code § 46.02 – Unlawful Carry of a Weapon statute. Learn more about the charge of Unlawful Carrying of a Weapon in Texas.
Texas Penal Code – Intoxication and Alcoholic Beverages: Texas Penal Code § 49.04 – Driving While Intoxicated statute.
Travis County Courts: Travis County Criminal Courts – Search dockets, find resources, and learn more about local court procedures.
Austin DWI with Unlawful Carry of a Weapon Lawyer | Travis County, TX
If you were charged with DWI and Unlawful Carry of a Weapon in Travis County, you should immediately contact a defense lawyer who understands both DWI law and Texas gun laws. Kevin Bennett will thoroughly investigate your arrest, examine whether your stop was lawful, and challenge the state’s case at every stage.
The Law Office of Kevin Bennett represents clients in Austin, Pflugerville, Lago Vista, Lakeway, and throughout Travis County. Call (512) 476-4626 today to schedule your free consultation and begin protecting your rights, your freedom, and your ability to lawfully carry a firearm.
