One of the most asked questions we get from citizens is, “what is the difference between a DWI and a DUI?”. Below, is a detailed explanation of the difference.
DWI v. DUI in Texas: What is the Difference?
Under Texas Law, driving while intoxicated and driving under the influence are two distinct criminal offenses. Generally speaking, Driving While Intoxicated is a more major offense under Texas law with a greater range of punishment. Driving Under the Influence is a lesser punished charge with a smaller range of punishment. There are two main differences between DWI and DUI. The first is the age of the person accused. In Texas, any person regardless of age can be charged with DWI. However, only citizens under 21 years of age may be charged with DUI.
The second difference between DWI and DUI is the level of proof needed to prove the offense. To convict a citizen accused of DWI (Driving While Intoxicated) the State must prove that the person was intoxicated at the time he or she was operating a motor vehicle. For the legal definition of “Intoxicated” under Texas law, click HERE.
In order to convict a citizen of DUI (Driving Under the Influence) the State only has to prove that the person accused had ANY detectable amount of alcohol in his or her system at the time they were operating a motor vehicle. The State can prove these various ways including but not limited to: a) the accused admitting to consuming alcohol; b) the odor of an alcoholic beverage on a person’s breath; or c) a breath test under the legal limit of 0.08.
Below, please find the law for Driving While Intoxicated and Driving Under the Influence in Texas.
Driving While Intoxicated: Texas Penal Code section 49.04
§ 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. (b) Except as provided by Subsection (c) and § 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours. (c) 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 offense is a Class B misdemeanor, with a minimum term of confinement of six days. Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, § 14.55, eff. Sept. 1, 1995.
Driving Under The Influence: Texas Alcoholic Beverage Code section 106.041
§ 106.041. DRIVING UNDER THE INFLUENCE OF ALCOHOL BY MINOR. (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 offense 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 a prior.
an offense under this section; or (2) not less than 40 or more than 60 hours, if the minor has been previously convicted of an offense 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 offenses 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 considered a conviction of an offense 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 minor 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 minor 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. Added by Acts 1997, 75th Leg., ch. 1013, § 5, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1207, § 2, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch949, § 29, eff. September 1, 2005.