Carl David Ceder - Attorney and Counselor at Law

What is driving under the Influence?

When you drive under the influence, it means you operate a motor vehicle while under the control of a drug or an alcoholic drink. The use of alcohol and drug can hinder your mental and physical capacities as a driver, so it is frowned upon by law.

Drunk driving, sometimes called driving while intoxicated (DWI) or driving under the influence (DUI), can mean many things:

  • Blood alcohol concentration (BAC) of 0.08% or higher: This means operating with a blood-alcohol level over the state’s maximum permissible blood alcohol limit. The legal limit for adults is 0.08% in the State of Texas.
  • Driving under the influence: Driving when drugs or alcohol impairs your physical abilities. In some cases, it makes no difference whether the drug is legal or illegal. If taking that drug impacts your senses of seeing, hearing, talking, walking and or judging distances, you may be guilty of a drunk-driving offense.
  • Felony DUI: Some driving under the influence can be charged as a felony if there was property damage or personal injury as a result of the DUI, or if the DUI was a repeat offense.

DWI in Texas

In Texas, Driving While Intoxicated refers to what is defined under Chapter 49.04 of the Texas Penal Code, which states, in relevant part, the following:

Texas Penal Code: Section 49.04 – DRIVING WHILE INTOXICATED

  1. A person commits an offense if the person is intoxicated while operating a motor that is, the person is drunk while operating a motor vehicle in a public place.
  2. Except as provided by subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
  3. If it is shown on the trial of an offense under this section that at the time of the crime the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

DUI in Texas

The two terms (DWI and DUI) mean different things in the state of Texas. For starters, DWI means “Driving While Intoxicated”; and DUI stands for “Driving under the Influence.” It may sound like the same offense, but according to the Texas Penal Code, they are two different things. If you are an adult and you are pulled over for drinking and driving, you will be charged with DWI (Driving While Intoxicated). If you are under the legal drinking age of 21, the officer that pulled you over while driving will charge you with one of two things. A minor can also be charged with a DWI, or he may be charged with a DUI (Driving under the Influence). The latter is a Class C misdemeanor.

A DUI is charged under Section 106.041 Texas Alcoholic Beverage Code and is only issued to minors (those under the age of 21). Accordingly, a minor may be charged with a DUI if they are driving with any amount of alcohol in their system, but are still under the legal limit (blood alcohol content of .08). Typical penalties for a DUI include a fine of up to $500, up to 40 hours of community service, mandatory alcohol awareness classes and a license suspension of up to 60 days.

Please note, Juveniles may still be charged with a DUI. Section 10.041 of the Texas Alcoholic Beverage Code states, in relevant part, the following:

DRIVING UNDER THE INFLUENCE OF ALCOHOL BY MINOR: Section 106.041 of the Texas Alcoholic Beverage Code

(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 crime 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 a crime 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 crimes under this section is not eligible for deferred disposition or 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 disposition for an offense alleged under this section is regarded as a conviction of a crime 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 juvenile 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 juvenile charged, and the offense charged.

(j) In this section:

(1) “Child” has the meaning assigned by Section 51.02, Family Code.

(2) “Motor vehicle” has the meaning assigned by Section 32.34(a), Penal Code.

(3) “Public place” has the meaning assigned by Section 1.07, Penal Code.

People who are under the legal drinking limit need to be especially diligent not to drink and drive. Texas considers itself a “zero tolerance” state for anyone who is under 21 years of age and is found drinking and driving. An underage driver is charged with a DUI if they are pulled over and found to have any “detectable amount” of alcohol in his system – and the person would be charged with a Class C misdemeanor. This means an individual may receive a suspension of his driver’s license for 60 days. A fine of up to $500 may also be assessed.

This offense could include involvement in community service and enrollment in an alcohol-awareness program. If the minor’s blood alcohol level is over the legal limit of .08 percent, they could also face increased penalties. In this case, he may be charged with the higher DWI charge.

Anyone under 18 years old who is found driving under the influence of alcohol will need to have their parent or guardian to accompany them to all court appearances and alcohol-awareness classes for a DUI charge. The good news is that if the minor completes all the requirements imposed on them, depending on the disposition, their record could be expunged when they turn 21 years old.

Penalties for DUI/DWI Convictions

  • Prison sentence
  • Community service hours
  • Court fees
  • Permanent criminal record
  • Fines
  • Surcharges after years of DWI conviction
  • Installation of an ignition interlock device for a long time
  • Attendance of alcohol and drug education program
  • Suspension of driver’s license
  • Hefty fees for reinstating a license.
  • Probation
  • Impounding of the vehicle
  • Loss of job that is related to driving a car.

Possible defenses against DUI/DWI conviction

  • You are free of a sentence if you are not the driver at the time of a DUI arrest
  • Lack of probable cause by a law enforcement officer to stop your car
  •  Improper legal procedures by law officers during an arrest
  •  Improper conduct of field sobriety test that shows an inaccurate result of impairment or alcohol consumption.