If your high school or college son or daughter calls you and says they've arrested for DUI or DWI, your initial reaction may be fear; then, you might throw in some anger and settle on worry. You know that an arrest for driving under the influence (“DUI”) isn't a good thing. But what are the practical consequences? And was that an arrest for DUI? Or was it DWI?
First, it's important to understand what a DUI is in Texas and how it differs from DWI. Many states across the country use DUI and DWI interchangeably, but Texas does not. Texas is a DWI state, and our legislation refers to “driving while intoxicated.” However, Texas law has a special “DUI” statute related to minors who drive under the influence of alcohol.
What is DWI?
In Texas, an individual is driving while intoxicated if either:
- A blood alcohol test (BAC) shows a blood alcohol level of .08% or higher; or
- The driver is impaired.
A driver is impaired if they don't have the use of their normal mental or physical faculties due to any amount of alcohol or drug consumption. This “impairment” factor means that police can arrest a driver for DWI even with a BAC below the legal limit. The legal BAC limit is even lower for commercial drivers.
However, it's important to remember that BAC tests are not always accurate and that determining whether a driver is impaired is largely up to the arresting officer's judgment. An experienced DWI defense attorney can help.
What is DUI?
In Texas, “driving under the influence of alcohol,” known as “DUI” or “DUIA,” is a charge reserved for minors under the age of 21. Because it is illegal for anyone under 21 to consume alcohol, the .08% legal blood alcohol limit of a DWI does not apply to minors; Texas is a “no tolerance” state. When a minor is driving while under the influence of any detectable amount of alcohol, police can charge them with a DUI:
“A minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor's system.”
See Tex. Penal Code. § 106.041 (2009). However, police can charge minors with both DWI and DUI for driving while intoxicated.
Potential DWI Penalties for Minors
Potential penalties for a DWI conviction are the same for minors and adults and can include both fines and jail time. Aggravating circumstances, such as driving with an open container, having a BAC over .15%, driving intoxicated with a minor in the car, seriously injuring or killing someone, can increase the severity of the charge and the possible penalties.
A first DWI conviction is a Class B misdemeanor. Penalties include:
- A fine of up to $2,000.
- Jail for a minimum of 72 hours and up to 180 days.
- A driver's license suspension.
For a first conviction, the license suspension will be for a minimum of 90 days and up to one year.
A second DWI conviction is a Class A misdemeanor. Penalties include:
- A fine of up to $4,000.
- Jail for a minimum of 30 days and up to one year.
- A license suspension of 180 days to two years.
3rd or Subsequent Offense:
A third or subsequent conviction for DWI is a third-degree felony. Penalties include:
- A fine of up to $10,000.
- Prison for a minimum of two years and up to ten years.
- A license suspension for 180 days to two years.
If a driver seriously injures someone while intoxicated, a conviction for intoxication assault is a third-degree felony, regardless of whether the driver has any prior DWI convictions. Penalties include a fine of up to $10,000, prison for a minimum of two years and up to ten years, and license suspension for 180 days to two years.
If an intoxicated driver kills someone, a conviction for intoxication manslaughter is a second-degree felony. Penalties include: (1) a fine of up to $10,000, (2) prison for two to 20 years, and (3) license suspension for 180 days to two years.
Texas also recently added mandatory amounts to the fines you can receive for a DWI, including:
- $3,000 for the first DWI in 36 months;
- $4,500 for any subsequent DWI in 36 months; and
- $6,000 for a BAC of .15% or higher.
Potential DUI Penalties for Minors
For children under 17 years old, the penalties and charges for suspected DUI vary from DWI penalties. The severity of penalties for a guilty DUI conviction can vary based on the minor's age and driving record.
1st Offense Under 17:
For minors under 17, a first DUI conviction is a Class C misdemeanor. Possible penalties include 20 to 40 hours of mandatory community service, a fine of up to $500, up to a 60-day license suspension, and a mandatory alcohol education class. For minors under 18, the court may require parents to attend the class with their child.
1st Offense Ages 17 to 20:
A first DUI in Texas is a Class B misdemeanor for minors between 17 and 20 of age. Penalties include up to $2,000 in fines, 72 hours to 180 days in jail for older minors, and a one-year license suspension.
A second DUI offense is a Class C misdemeanor. Penalties include up to a $500 fine, 40 to 60 hours of mandatory community service, a license suspension from 180 days to two years, and an alcohol education class.
Texas law classifies a third DUI offense as “Delinquent Conduct by a Minor.” Penalties include up to a $500 fine, 40 to 60 hours of mandatory community services, and a license suspension of 180 days to two years.
Preventing a License Suspension
In some cases, the courts will reduce a license suspension with community supervision and installing an interlock ignition device that prevents a car from starting if the driver was drinking. Your child can also request an Administrative License Revocation hearing within 15 days to challenge the license suspension by contesting whether the officer had probable cause to stop and arrest them. Your child can also contest the results of the chemical testing. However, this hearing is a formal legal proceeding before an Administrative Law Judge. Your best opportunity to succeed in an ALR hearing is to retain an attorney well versed in Texas DWI defense.
Implied Consent to Blood Alcohol Testing
If you drive a car in Texas, you give implied consent to testing for drugs or alcohol. If the police stop your minor child for suspected DWI or DUI, the police can ask them to consent to a breath or blood test even if you are not present. This “implied consent” rule doesn't mean that your minor child doesn't have a choice; the police can only compel a chemical test in specific circumstances. But if they refuse, the state can automatically suspend their driver's license for a set period:
- 1st Refusal: 180-day license suspension
- 2nd or Subsequent Refusal: two-year license suspension
If your child refuses to provide a specimen, the police can also place them in jail until they post a bond or appear before a magistrate or juvenile judge.
If your child refuses a breath or blood test, the police will also typically seek a warrant from a judge for a blood test. To obtain a warrant, the police need to show probable cause, including why they believe the officer believes your child is intoxicated and provide enough evidence to convince the court that it is reasonable to assume intoxication.
In some cases, the police may compel your child to take a blood test if an accident, serious injury, or death resulted from the alleged intoxication. However, the police still need probable cause to make a DWI arrest or compel chemical testing. A good DWI attorney can challenge whether the police had the requisite probable cause and whether the court should admit any resulting evidence at trial.
Should You Hire a DWI Specialist?
Many people charged with DWI or DUI assume that this is an open and shut case that they can't fight. They agree to plead guilty without consulting an attorney or understanding their legal options. Not consulting an attorney is a mistake. DWI charges will remain on your child's record indefinitely because Texas law does not permit expungement or “expunction” of DWIs. See Tex. Crim. Code § 55.06 (1999). Moreover, there can be serious collateral consequences to a DWI or DUI conviction.
A skilled DWI defense attorney can evaluate your child's case and determine the best course of action. Whether the best option is fighting the probable cause for the arrest or contesting a breathalyzer test's accuracy, an expert in DWI defense can steer your case in the right direction. In some cases, first time DWI offenders may be eligible for deferred adjudication. Deferred adjudication means supervised probation, followed by an entry of a “not guilty” verdict on the accused's criminal record. A DWI specialist can help determine if this is the right course of action for your child's case.
Attorney Doug Murphy is Board Certified in DWI defense law. He is one of only two Texas attorneys with board certifications in both DWI and criminal defense law from the Texas Board of Legal Specialization. Best Lawyers in America also recently named Doug the “Lawyer of the Year” for 2021 in DWI defense based on the peer reviews of fellow Houston-area attorneys. Doug is a noted expert in DWI defense law, and attorneys throughout Texas and the United States seek his expertise.
If your high school or college-aged child faces a DWI or DUI in Texas, contact our office today. A DWI can impact many areas of your child's life, but you do have legal options, and we can help.