Driving While Intoxicated (DWI)

The Law

A person commits an offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Intoxication has two definitions. The definition of intoxication that is usually discussed is if someone has a blood alcohol concentration (BAC) of .08 or more. The other definition of intoxication is 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. In theory, that means someone could be found guilty of driving while intoxicated by drinking too much milk and losing the normal use of mental or physical faculties.


An offense of driving while intoxicated is a <class B misdemeanor>, with a minimum term of confinement of 72 hours. If an individual has committed other offenses, specifically other DWI’s, the punishment can be enhanced.

Additionally, driver’s can have their driver’s license suspended. An individual can receive a suspension for 90 days up to 2 years. This suspension arises when an individual refuses or fails a breath test or fails a blood test. In Texas, many cities and counties have begun testing blood alcohol levels by taking blood of the accused; this is possible through a search warrant issued by a judge or magistrate. If an individual has a commercial driver’s license the punishment is more severe; refusal of a breath test or failure results in an automatic 1 year license suspension.

Individuals only have 15 days to request an Administrative Hearing to try and stop their driver’s license from being suspended; this is separate from the proceedings that deal with the issues of guilt or innocence for driving while intoxicated. The burden of proof in the Administrative Hearing is only by a preponderance of the evidence. Even if an individual has their license suspended, it is still possible for them to receive an occupational license. The Department of Transportation does require an additional reinstatement fee to get your license back and a yearly surcharge, ranging from $1,000 to $2,000, which can last for 3 years.

If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the punishment can have an increased minimum confinement.

In the State of Texas, deferred adjudication is not available for driving while intoxicated.


The fact that the driver is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.

 An officer has to have reasonable suspicion to initiate a stop. Reasonable suspicion can arise from many different possibilities. Some of the possibilities are speeding, changing lanes illegally, reckless driving, and driving without a license plate. In general, any traffic violation is grounds for an officer to have reasonable suspicion to make a stop. This is the first area where a defense can be raised. If there was not a traffic violation or any other incident that gave the officer reasonable suspicion, anything found thereafter might not be capable of being used against the driver.

After the initial traffic stop, an officer can develop probable cause to arrest a driver from their observations. At this point the officer can request that the driver perform field sobriety tests (FST). The field sobriety tests raise another area for possible defenses. An officer has to execute the FST by following certain procedures. Not only can the performance of the driver in executing the FST prove to be a defense, but also an improper execution of the FST by the officer can be a defense.

If the officer develops probable cause through these observations, the driver will then be arrested for driving while intoxicated. At this point, an officer can ask the driver to submit to a chemical test (e.g., breathalyzer) to determine the blood alcohol content (BAC). Remember, an individual does not have to have a BAC above .08 to be found guilty of a DWI; additionally, a driver does not even have to have a chemical test performed to be found guilty. The breath test allows for certain defenses to be raised on the accuracy of the actual machine. Whether these defenses are viable is for the jury to decide.

The chemical test could also come from a blood sample. This blood sample can only be taken if a search warrant is issued from a judge or magistrate or if the driver consents to the blood sample being taken. Defenses can arise against the search warrant if there was not probable cause to issue the search warrant. The lack of probable cause can arise from the FST being administered wrong, the officer misstates the results of the FST, or the initial traffic stop was not based upon reasonable suspicion.


The exact language of this law, further details, and additional punishment concerns can be found in section 49.04 of the Texas Penal Code. None of this information can take place of the information, knowledge, and expertise provided by a licensed attorney.



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