DWI vs. DUI: What’s the (Texas) Difference?


DWI: Driving While Intoxicated. DUI: Driving Under the Influence.  Two possibly similar Texas crimes, with two very different potential consequences.  In many states besides Texas, any allegation of driving while under the influence of alcohol is considered DWI.  In contrast, in those other states a DUI is charged when there is suspicion of driving under the influence of drugs.  DWI for alcohol.  DUI for drugs.  Simple really.

Well, sometimes here in Texas we do things our own special way.  In Texas the difference between a DWI charge and a DUI charge can hinge on two factors, the level of intoxication, and the age of the driver.

Let’s talk about DUI first.  In Texas, if a driver under the age of 21 has any detectable amount of alcohol in their system – even if it is not impairing them behind the wheel – they can be charged with a DUI.  The thinking is that in Texas, since it is illegal to consume alcohol under 21 anyway, the State can criminalize the conduct of younger drivers who drank any amount of alcohol.

A DUI in Texas is considered a Class C misdemeanor, which can result in a fine of up to $500.00, but cannot result in any jail time.  A DUI will get your driver’s license suspended however, anywhere from 60 to 180 days depending on the amount of prior alcohol-related driving convictions you have on your record.

Now let’s look at a DWI.  In Texas, a person is considered driving while intoxicated if they are operating a motor vehicle while either not having the normal use of their mental or physical faculties due to alcohol, drugs, dangerous drugs (i.e. prescription medications), or a combination of those substances, or by having a blood alcohol content (BAC) of .08 or higher.  As we see here, neither the age of the driver, nor the type of substance consumed has any bearing on the charge.  Alcohol, drugs, it doesn’t matter: if something makes you mentally or physically impaired, meaning “not normal”, and you drive, you risk a DWI charge.

While a DUI is merely a Class C misdemeanor which cannot result in jail time, a DWI is at least a Class B misdemeanor which carries a potential penalty of up to six months in jail or two years of probation and up to a $2000.00 fine.  And that’s just for your first conviction.  The second conviction is a more serious Class A misdemeanor while a third conviction is considered a felony with the possibility of prison time.

And don’t think that if you are under 21 you will only be charged with that lower DUI offense.  If the police think that you are exhibiting signs of a true DWI, they are free to charge you with that higher offense.

As always, take care of yourself, be careful what you consume, and drive safe.

Don’t Just “Don’t Drink and Drive”

DWI: It’s not just for alcohol anymore

dont drink and driveDon’t Drink and Drive.  We have all heard it a million times.  It’s snappy.  It’s easy to remember.  But from a legal perspective, it’s woefully incomplete.  However, “Don’t Drink or Take Impairing Levels of Illegal Street Drugs, Federally-Prescribed Medications, Over the Counter Medications, or Other Substances or Mix the Aforementioned Substances Together and Drive” doesn’t fit on a bumper sticker as nicely.

The “I” in DWI is Intoxication.  And in Texas, that is defined  as “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 having a blood alcohol concentration of 0.08 or more.

It’s not so simple as to say “Don’t Drink and Drive”.  What this means is that if you are planning on driving, you have to guard against becoming intoxicated (what I’ll call being “not normal”) by more than just alcohol.  Certainly, controlled substances (illegal narcotics) can have an impairing effect.   But even if you are “not normal” because you’ve taken legally prescribed medicine, or even over the counter medicine, you are still considered intoxicated under Texas law.

Another subtle danger that the law on intoxication speaks to is the “combination of two or more” substances like illegal drugs plus alcohol or prescription medications.  Many drugs, legal or otherwise, can have what is known as a synergistic effect  where the two drugs taken together (or with alcohol) can have a stronger effect than when taken apart.  They can enhance and multiply the effects of each other.  Again, this doesn’t have to be street drugs we are talking about.  Is your over the counter cough medicine acting synergistically with your prescribed seasonal allergy meds, or your antidepressants, or your blood thinners?  Better find out before you get behind the wheel.

Remember, DWI is not an “intent crime”.  The State of Texas does not have to prove that you intended to drive while intoxicated to convict you.  They only have to be able to prove that you did.  So even if the impairment is accidental, you may still be held criminally liable.  Know your limits.  Know what you put into your body.  And always, drive safe.

What to Do When a Loved One is Arrested in Texas

To begin with, and I know this sounds simple, but don’t panic.  Just take a deep breath and move through the following steps.

First, determine what county your loved one was arrested in.  This is important because no matter what agency made the arrest, your loved one will eventually end up in a county jail; there are no city jails, only county jails.  When you know what county they are in, look up the county jail phone number and keep it with you.  You will be using that number a lot.

Second, call the county jail and verify that they have your loved one in custody.  Often the folks answering the phone do not yet have an updated list of new arrestees, so you may have to call back several times.  It pays to be patient and treat the folks answering the phone politely.

Third, if you can, find out from the jail staff what the exact charges are and then what the bond amount is.  The bond will be an amount of money that will need to be pledged to the county before your loved one will be released from jail.  Many times, the bond amount will not be known until your loved one sees a special judge at the jail known as a magistrate.  In those cases, the magistrate will set the bond and unfortunately, you’ll simply have to wait until that happens before they can be released.  Some larger counties have magistrate judges available 24 hours a day to process newly-arrested people.  However, some smaller counties only have magistrate judges available at certain times, and if the arrest happens outside of those times, you could be in for a longer wait.  Again, until your loved one is brought before the magistrate judge, they cannot be released.

When you do find out the bail bond amount, the next question is how to pay it.  There are two, and depending on the county, possibly three ways to pay that bond and get your loved one out of jail: a cash bond, a surety bond, and an attorney bond.  Let’s talk about each.

What is a cash bond?  This is simply a bond where you pay the entire amount to the county jail yourself.  When the case is completely finished some week, months, or even years later, you will get all of your money back minus a small handling fee.  It’s called a cash bond but really you can pay with cash, a cashier’s check or a money order.  A county will not likely take a personal check from you, so be prepared.  For the exact steps to pay the cash bond in a particular county, contact that county jail.

What if you don’t have the money to pay 100% of the bond amount as a cash bond?  Well, that is what a bail bond company is for: posting a surety bond.  A bail bond company will charge you a percentage of the total bond amount, say 10% – 15%, and they will pledge the rest of the bail amount to the county with a surety bond.  That percentage that you pay to the bail bond company will NOT be returned to you when the case is over, as it is essentially the fee for their service of getting your loved one out without you having to pay 100% of the bail amount.  A good bail bond company in the county that your loved one is jailed in will likely be open 24 hours a day, seven days a week, and can handle all financial transactions over the phone or electronically.

In some counties, but not all, there is a third option: an attorney bond.  Here, an attorney acts as your bondsman.  You pay them a fee and they will get your loved one out of jail.  Again, many counties do not allow for attorney bonds.  Check with the county jail to see if that county does or does not.

Ultimately, until your loved one has 1) seen the magistrate judge in jail AND 2) had their bond paid either as a cash, surety, or attorney bond, only then can the jail begin the process of finally releasing your loved one.  Depending on the county, some jails are simply faster and more efficient at processing people in and out of jail.  What may take an hour in one county may stretch out to an entire half-day someplace else.  It can be a frustrating process, but by arming yourself with some knowledge about how and why the system works like it does, it doesn’t have to be a giant mystery.



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