“Zero Tolerance”: When Minors Are Deemed Under the Influence

For adults, Texas alcohol-related law is, at its core, focused on safety: We don't want anyone harmed because of someone's use of alcohol. A person may be charged with “driving while intoxicated” (DWI) if they have been driving on a public road, and they have consumed so much alcohol (or another substance) so that they no longer have the normal use of their mental or physical faculties. Intoxication is presumed if they have a breath or blood concentration (BAC) of 0.08% or above.

However, for minors (those under the age of 21), Texas' lawmakers had a broader prevention goal in mind: They wanted to stop minors from using alcohol in the first place. Therefore, the relevant laws for minors intend to prevent them from using alcohol in the first place. Collectively, these resulting statutes are referred to as Texas' “zero tolerance” laws.

“Zero Tolerance” Laws:

Under Texas state law, minors can be charged with a criminal offense if they have consumed any alcohol, no matter how small the amount, i.e. "any detectable amount". They do not have to be impaired by their use of alcohol before being arrested, and there is no BAC that is considered allowable. They can be charged with a BAC of 0.0%. Similarly, minors are barred from purchasing or possessing alcohol. Many of us started consuming alcohol before we were of legal age. This is a natural curiosity and laws do not necessarily prevent underage consumption.

The law also includes separate offenses if a minor attempts to consume, purchase, or possess alcohol. If they use a fake ID, or try to get someone to buy a beer for them, those are violations of the law, even if they are unsuccessful in their attempt.

It's important to realize that these alcohol offenses are unrelated to driving. Minors may be charged with a Class C misdemeanor, regardless of the location or activity. They could be passengers in a car, walking in a park, or even sitting on their front stoop. (Note that there is one exception here: a minor is allowed to consume alcohol if they are under the visible supervision of a parent, legal guardian, or spouse.)

The good news is that a citation or an arrest for an underage person does not mean it is a hopeless legal situation. There is a lot an experienced and seasoned DWI expert can do to help.

DUI versus DWI

In other states, “Driving Under the Influence” (DUI) refers to an adult's violation of a drunk-driving law but, in Texas, the adult charge is “Driving While Intoxicated” (DWI), as explained above.

The Texas “DUI” is a specific charge against a minor for drinking and driving.

Because of the state's zero-tolerance approach, the DUI charge for minor-drivers does not require any impairment, intoxication, or BAC; any alcohol use while driving is subject to a DUI. However, because of this lower standard, the DUI penalties are less severe: A first offense DUI may result in a fine of up to $500 and 40 hours of community service, while a first offense DWI fine can be as much as $2,000 with a jail sentence as long as 180 days.

Both DUI and DWI offenses can include the same suspension of a driver's license, but DUI offenders are also required to participate in a mandatory alcohol awareness program if convicted. A court may also order a minor's parents to attend the program.

While DWIs may require bail for release from custody, there is no system of bail for a DUI charge. Instead, those under 17 will be held in a juvenile facility, and release is up to a judge to decide—based on what is in the best interests of the minor. Usually, a judge will release a minor into the custody of a parent or guardian, but the judge can order a minor to remain in custody.

Crucially, a minor can be charged with either a DUI or a DWI, depending on the circumstances. Minors under the age of 17 will appear in juvenile court, while those aged 17-21 could be tried as adults.

Why Minors should have an experienced DWI Defense Attorney

Minors should have a DWI specialist represent them in any alcohol-related matters, because their attorneys should consider the impact of a DUI or other convictions while developing their strategy for the present case.

As an example, a DUI conviction may be subsequently expunged (that is, completely removed) from a minor's criminal record, but only if the minor was not convicted of any other alcohol-related crimes. Also, a DUI-conviction will not automatically drop off an underage minor's driving record at age 18 unless the lawyer is retained to file a petition to expunge the DUI, while a DWI will permanently remain on their driving record. Therefore, if a prosecutor is offering reduced charges and sentences in exchange for a guilty plea, the DWI specialist will work to make sure that the accepted charges would not have an accidental impact, years down the road.

Other consequences of an alcohol-related charge or conviction

Going through an arrest and criminal proceeding is difficult for an adult. It may be even that much worse for a minor, so it may be tempting to take the fastest route to resolve the matter (i.e., pay the fine and move on). While that is understandable, keep in mind the down-the-road effect a conviction can have.

A conviction can impact college applications, scholarship eligibility, and loans. College students attending the University of Houston or Rice University may face on-campus consequences after a DUI or DWI charge (with or without a conviction); the universities can see it as a violation of the schools' honor codes.s

Criminal convictions can make it difficult to pursue one's career of choice; Employers can ask about criminal history during job interviews, and convictions can impact the ability to obtain a professional license or clearance.

It's worth fighting the charge. It may be worth going to court. Remember that a charge is not a conviction. People can and do win DWI cases. Even that charging decision can have a huge impact. That's true for any DWI, but even more so for minors. Texas' goal for their cases is to stop harm before it starts; it's not to cause more unnecessary pain in the future.

One of the best DWI lawyers in Houston, Doug Murphy brings 20 years of experience in the courtroom in DUI defense. Heralded as one of the 2021 Best Lawyers in America by US News & World Report, Murphy currently serves as the Dean of the National College for DUI Defense conducted at Harvard Law School, and he served two terms on the board of directors and as co-chair of the DWI Committee with the Texas Criminal Defense Lawyers Association.

If you or your minor child face DWI charges in Texas, contact Doug Murphy’s office today to discuss the case and begin working on the defense.

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