In Texas, there is a distinct difference between the offenses of DWI and DUI. DWI is the abbreviation for Driving While Intoxicated, while DUI is short for Driving Under the Influence. Consider the following:
Driving Under the Influence (DUI) is reserved for minors, people under 21 years of age. Under the influence is defined as any detectable amount of alcohol. Texas law has zero tolerance for minors with any detectable amount of alcohol. DUI is a class "C" misdemeanor. The maximum punishment for a Class "C" misdemeanor is a $500 fine. DUI also carries with it a driver's license suspension when you're arrested or when you receive the citation (ticket); there is also a separate and additional driver's license suspension if you're convicted. You can challenge a driver's license suspension upon arrest through an ALR (Administrative License Review) hearing. The hearing must be requested within 15 days of arrest or citation. A police officer may request a breath test or simply issue a citation because the officer smells alcohol on the minor. A minor may refuse a breath test if arrested for DUI.
Driving While Intoxicated can apply to both minors and adults. An individual can be arrested for DWI whether they have consumed alcohol or drugs, even if the drugs are prescription drugs. Whether you take a breath test or not, you can be charged with DWI. DWI can be proven in one of three ways: (1) having a Blood Alcohol Content (BAC) of 0.08 or more, (2) not having your normal mental faculties, or (3) not having your normal physical faculties; due to alcohol or drugs. In Texas, DWI laws get tougher and tougher every year so it is important to consult with an attorney.
Breath or Blood Tests
Once you are arrested, an officer will request a blood or breath test. REMEMBER, YOU ARE ALREADY UNDER ARREST! Passing the breath test will not let you go home. It is important to be very careful in deciding to take a breath or blood test. If an officer asked you to blow into a little hand held gadget on the side of the road, it is okay; that reading is not admissible in court, except to show the mere presence of alcohol. If you admitted to drinking, the fact that you blew into that Portable Breath Test (PBT) has no relevance in a DWI trial. The most common question is, "CAN I REFUSE A BREATH OR BLOOD TEST?" The simple answer is "YES," but there may be some consequences. It is important to know that YOU DO NOT HAVE A RIGHT TO AN ATTORNEY IN DECIDING TO TAKE A BREATH OR BLOOD TEST.
Consequences of Refusing a Breath or Blood Test:
- If you refuse a breath test, DPS will try and suspend your driver's license for a period of 180 days if you have never had a DWI before. If you have had a prior DWI or were asked to take a breath test before, the suspension could be two (2) years.
- The fact that you refused a breath test can be used against you in trial. Again, the courts have determined that you have no 5th Amendment protection against self incrimination regarding a Breath or Blood Test.
IT IS IMPORTANT TO KNOW THAT YOU ONLY HAVE 15 DAYS TO REQUEST A HEARING TO CHALLENGE YOUR DRIVER'S LICENSE SUSPENSION.
Consequences of Taking the Breath of Blood Test:
- If you take a breath or blood test and the test reveals that you have an alcohol concentration of 0.08 or more, your driver's license will be suspended for 90 days if this is your first DWI, or up to one (1) year if you have a prior DWI or alcohol suspension.
- You just gave the State evidence to convict you.
- Even if you pass the Breath or Blood test, you can still be charged and convicted of DWI.
DWI Blood Warrants
The new trend in DWI law is for police to get warrants to draw your blood. A few cities in North Texas, such as Carrollton and Flower Mound, have procedures in place to get a warrant to draw your blood on every DWI arrest. Some of those same cities, including Carrollton and Frisco, actually draw blood in their jails. A judge is needed to sign a warrant to draw your blood.