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Many states use a different term what would be classified in Texas as Driving While Intoxicated (DWI). A large majority of states actually refer to it as Driving Under the Influence (DUI). However, there is a very significant difference between an offense in Texas for DWI vs. DUI. Regardless of the terminology, and also as a result of many prevailing misconceptions related to charges of DWI what elements constitute it being a criminal offense are very commonly misunderstood.

DWI Defense is very much a niche practice, the laws are always changing and evolving, which can result in many people being overwhelmed, worried, and scared subsequent to being arrested for DWI. It is the criminal offense that no doubt usually an individual who has never been arrested or been involved with law enforcement before can find themselves trying to understand and comprehend the nature of the proceedings, and how best to proceed and how the best approach to handle the case should be. An arrest and a possible conviction for a DWI charge in Texas can carry very steep and severe penalties and punishment which can result, and it also can cause a person to harbor a certain social stigma from being put in the position of having to navigate through the Texas criminal justice system.

A person of any age can be charged with DWI in Texas, while only minors can be charged with DUI if it is alleged that they were operating a motor vehicle with any detectable amount of alcohol. It should be noted how a minor if it is believed they are intoxicated, can be charged with a DWI as well, which is a higher left of offense and a resulting higher range of punishment. Article 49.04(a) of the Texas Code of Criminal Procedure defines the criminal offense of DWI if “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” Regardless, if someone is charged with DWI, the state must prove every element of the offense beyond a reasonable doubt, including that a person is operating an actual motor vehicle, in a public place while being intoxicated as a result of the consumption of substance (it should be clear that individuals can be arrested and convicted of DWI even where no alcohol is consumed).

In Texas, by far the overwhelming element that is most commonly disputed in court is whether an individual is by the legal definition “intoxicated. “Intoxication in Texas is defined under Article 49.01(2) as the following: “not having the normal use of mental or physical faculties by reason 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, or by (B) having an alcohol concentration of 0.08% or more.

Thus, there are 3 different and separate avenues with which an officer can arrest someone for the offense of DWI in Texas, and the state can choose any one of them at trial in order to obtain a conviction. It is only necessary to prove one falls into one of those categories, and thus, having a .08 blood-alcohol concentration, or the “BAC” level, is not technically needed to prove the offense if one has lost the “normal use” of their mental and/or physical faculties due to the consumption of some substance (this does not have to be something illegal in nature as defined above). People are also shocked and mistakenly believe the main standard is the .08 BAC (Blood Alcohol Level) definition and believe this is the main threshold. Not only is this far from the case, but it is also is commonly misunderstood when an individual may have reached the .08 BAC level (or above) after consuming alcohol. Many people often ask me at social events inquiring about when an arrest for a DWI can be made, and are sometimes shocked when they learn the state can still proceed to prosecute you even if you have a BAC level under a 0.08!

Sometimes when conveying this, friends or people I am having dinner with will slow down how much they drink with their dinner, knowing they will have to drive home. People are usually unaware of the nature of this after reading the incredibly low and subjective standard used that could justify an arrest for DWI, and become even more stunned when I also state when relating how this proposition to be true how I have had numerous DWI jury where the individual is not only under a .08 (but sometimes well below it), and sit in awe with their mouths open in disbelieve when I relate how I have previously conducted many jury trials even where the BAC level was determined to be 0.0.

DWI Laws In The State Of Texas

As stated previously, by far the most commonly contested element of a DWI charge in Texas is intoxication. This is attributed entirely to how subjective and ambiguous the definition of intoxication is. However, it is very important to note how the state must prove EVERY element of the offense of DWI beyond a reasonable doubt at trial, and not just intoxication. Thus, it must also be proved that a motor vehicle was indeed operated by the individual in some form of a public place. As such, the state has to prove ALL elements of the offense beyond a reasonable doubt, including whether someone was actually operating a motor vehicle and if they were doing so in a public place. For DWI, its driving while intoxicated in a motor vehicle in a public place.

It may sound absurd but I can recall an incident where an arrest was made in Austin, Texas where a man was observed on the downtown area of 6th street simply riding on a donkey. As ridiculous as that may sound, this individual was arrested for a charge of DWI because it seemed clear he was indeed very much intoxication, he was obviously in a public place on 6th street in downtown Austin, and the police officers must have believed the definition of a motor vehicle in Texas includes an animal as well. In this case, all the other elements would likely be able to be proved, but one would think it is obvious that a donkey would not be classified as a motor vehicle This is not the case, as a motor vehicle as its own separate definition, but the point is all elements must be able to be proved (even if known to be true by the citizen accused) in order for a conviction to result.

Another example would be if a person is doing wheelies on their private property and they are, in fact, very much legally intoxicated, but because it is not a public place it is perfectly legal to do so. In this scenario even though all elements including intoxication may be able to be proved, they were not also in the act of doing so in a public place. In theory then, I sometimes tell people one could drive their car as intoxicated as they have ever been, but if they happen to be doing so on their own private property, such as maybe a ranch or where someone has a large house, the element of a “public place” likely would be a factor where the state would have difficulty proving. They have to not only prove that you’re intoxicated, but also that you’re operating and in a public place.

There are cases where a person may have been operating the vehicle, but if they don’t answer questions, the officer might not be otherwise able to prove operation. The actual “operation” of the vehicle is also an element that has to be proved beyond a reasonable doubt, and sometimes the evidence does not support this may have been the case. This is a prime example of why one should never give statements and should say as little as possible and at all costs should try to avoid giving any statements to the police. Often, people simply admit to driving when an officer approaches, and along with perhaps something else to corroborate that fact would suffice for the State to prove this element, whereas if a person exercised their right to remain silent this may not have been the case.

The Difference Between DUI And DWI In Texas

Other states call what we call a DWI a DUI, and people in Texas often confuse the terms. In Texas, as stated previously a charge of DWI is defined, generally speaking, as driving a motor vehicle while intoxicated in a public place. In Texas, however, a charge of Driving Under the Influence, or a “DUI” offense, only applies to minors under 21 years of age and is classified as a Class C misdemeanor offense (whereas offenses of DWI are higher level of criminal offenses, and can have differing enhancements based on certain factors and if a person has a prior conviction for DWI previously. A minor can be charged with a DUI (even if they are not legally intoxicated) if it is determined that they are operating a vehicle while having “any detectable amount of alcohol in their system” while doing so. However, if it is believed that the minor is, in fact, intoxicated, they can be charged with a DWI offense just as an adult could, which would result in some form of an enhanced range of punishment.

Misconceptions – Texas DWI Charges

DWI is the type of crime that most often, otherwise normal law-abiding citizens find themselves being investigated and possibly arrested for. Many people simply do know, understand, or are familiar with the law and how easy it is to be arrested for the offense. Many individuals do not fully know and understand the law and are simply not aware that you do not have to be driving with a certain BAC level in order to possibly be arrested and/or convicted for the offense.

Simply put, however, it cannot be underscored enough that in Texas IT IS NOT ILLEGAL TO DRINK ALCOHOL AND DRIVE. There is nothing illegal about someone consuming alcohol and operating a vehicle, as long as they are not intoxicated under Texas law described previously. Thus, it is not illegal to drink and drive, and it would only rise to the level of a criminal offense of DWI if a person reached the level of intoxication. Everyone knows the familiar slogan that is plastered on billboards everywhere on Texas roadways: “Drink, Drive, Go To Jail.” This is an incorrect assertion of the actual law of DWI in Texas and is a grossly inaccurate misstatement of the actual law. In other words, it is perfectly legal and it is not against the law in Texas to consume alcohol and subsequently operate a vehicle – as long as one does so while not being intoxicated.

There is a stigma out there, and many people actually believe that if a person drinks and drives, they should and will go to jail for a charge of DWI.  Many people who show up for jury duty after hearing the definition of what constitutes a DWI in Texas, still believe that anyone who drinks any amount of alcohol and then drives should be arrested, go to jail, and ultimately be convicted. It is a fairly common mindset actually, and it is vitally important to help these people understand that their definition of DWI and the legal determination in Texas can be different. In fact, I encourage those who believe this during jury selection, to be honest about this belief. It is imperative because there is nothing wrong with someone disagreeing with any law in Texas, other states, or on a national level, but it would be a basis for them being struck for cause from serving on the actual jury.

Even so, this concept often can be very difficult to explain to potential jurors when informing them what the law of DWI in Texas actually is, especially with the 3 different paths of intoxication. Often people have trouble grasping this concept, and it is mandatory that they communicate and understand how the state can proceed on any one of those avenues.  Many people also do not believe that as long as they only drink in moderation, perhaps are casual drinkers, erroneously and to their detriment believe their BAC is under a .08. Often they are very shocked and disconcerted when learning how an individual can still be arrested for a DWI charge regardless of what the BAC level is determined to be.  The variety and multiple of misconceptions of the law and having trouble grasping the nature of what constitutes a charge of DWI in Texas, and how some people, even when informed about what the law actually is, still believe in the slogan of “Drink, Drive, Go To Jail” or some variation of the term. I believe in large part this can be attributed to MADD, and other entities, which promulgate this erroneous version of the law, some of which have a vested interest in the volume of arrests of DWI charges.

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