A Complete Guide by Houston DWI Lawyer Eric J. Benavides
If you were recently arrested in Houston or Harris County for drunk or drugged driving, you may be confused about whether you were charged with DWI or DUI, and what the difference between these terms really is. Many people—even lifelong Texas residents—use the words interchangeably, and Hollywood movies only make the confusion worse. But under Texas law, DWI and DUI are two completely different offenses, and the consequences of each can vary dramatically.
Understanding these differences is critical, especially if you or a loved one faces charges in Houston. The decisions you make right now—including hiring the right lawyer—can have long-term consequences for your freedom, your record, and your driver’s license.
This comprehensive guide breaks down everything you need to know about DWI vs. DUI in Texas, what charges may apply depending on your age, BAC, drugs, or refusal, and how Attorney Eric J. Benavides, a Houston DWI defense lawyer with years of experience, can help protect your future.
The Biggest Difference: Age and Type of Offense
In Texas, the distinction between DWI and DUI is not based on:
- How drunk someone was
- Whether they took a test
- Whether there was an accident
- Whether drugs were involved
Instead, the difference is based primarily on age and the statute used to charge the offense.
Here is the simplest explanation:
DWI = Driving While Intoxicated (Adult Offense – Applies to 21+)
DWI (Texas Penal Code §49.04) applies to adults 21 and older, although minors can also sometimes be charged with DWI if they are intoxicated under Texas law.
DUI = Driving Under the Influence (Minor Offense – Applies to Under 21)
DUI (Texas Alcoholic Beverage Code §106.041) applies only to individuals younger than 21, and it is a much less serious offense than DWI.
A 16-year-old can be charged with DUI.
A 25-year-old cannot.
A 25-year-old can be charged with DWI.
A 16-year-old can—if intoxicated—also be charged with DWI.
Let’s look at each definition in detail.
What Is a DWI in Texas? (Driving While Intoxicated)
Under Texas Penal Code §49.04, a DWI occurs when someone:
“Operates a motor vehicle in a public place while intoxicated.”
The word intoxicated has three possible meanings under Texas law:
- Not having the normal use of mental faculties
- Not having the normal use of physical faculties
- Having a blood alcohol concentration (BAC) of 0.08 or higher
This means you can be arrested and charged with DWI even if you:
- Blow under 0.08
- Refuse breath or blood testing
- Are under the influence of prescription medications
- Are under the influence of illegal drugs
- Are under the influence of a combination of alcohol and drugs
DWI is a criminal offense, almost always filed in Harris County Criminal Court, and it carries serious consequences, including jail, probation, fines, and license suspensions.
What Is a DUI in Texas? (Driving Under the Influence)
DUI is governed by Texas Alcoholic Beverage Code §106.041 and applies only to people younger than 21.
The law states that a minor commits DUI if they operate a motor vehicle with any detectable amount of alcohol in their system.
This means:
- A minor can be charged with DUI even if they are not intoxicated.
- There is no requirement of impairment.
- There is no BAC threshold.
It is a zero-tolerance law for minors.
DUI is usually a Class C misdemeanor, similar in level to a traffic ticket but with far more serious long-term consequences.
Penalties: DWI vs. DUI in Texas
The penalties for each offense vary greatly. Understanding what is at risk can help you make informed decisions about your defense.
4.1. Penalties for DUI (Under 21)
First Offense DUI – Class C Misdemeanor
A minor charged with DUI faces:
- Up to $500 fine
- Possible Alcohol education class
- Possible community service
For a teen who plans to apply for college, a job, financial aid, or the military, even a Class C DUI can be a major problem.
DUI With Prior Offenses or Higher Circumstances
If a minor has prior DUIs, penalties increase significantly. In some cases, the prosecutor may choose to upgrade the charge to DWI, depending on intoxication level or refusal.
4.2. Penalties for DWI
A DWI conviction carries far more severe consequences.
First Offense DWI – Class B Misdemeanor
- Up to 180 days in jail
- Up to $2,000 fine
- 72 hours mandatory jail minimum
- Driver’s license suspension (90 days to 1 year)
- Possible Ignition Interlock Device
- Probation, community service, and alcohol education
BAC ≥ 0.15 – Class A Misdemeanor
If the breath or blood test is 0.15 or above:
- Up to 1 year in jail
- Up to $4,000 fine
Second DWI – Class A Misdemeanor
- Up to 1 year in jail
- Up to $4,000 fine
- Driver’s license suspension up to 2 years
- Mandatory Interlock
Third DWI – Third-Degree Felony
- 2–10 years in prison
- Up to $10,000 fine
- Felony conviction for life
DWI With Child Passenger – State Jail Felony
- 6 months to 2 years in state jail
- Up to $10,000 fine
As you can see, the difference between DWI and DUI is not small—DWI can change your life forever.
Which Charge Applies to You in Harris County?
The charge depends on age, impairment, and alcohol detection.
Here’s a simple guide:
| Age | Any Alcohol? | Intoxicated? | Possible Charge |
|---|---|---|---|
| Under 21 | Yes | No | DUI |
| Under 21 | Yes | Yes | DUI or DWI |
| Under 21 | No | Appears Intoxicated (drugs) | DWI |
| 21+ | Any alcohol | Appears intoxicated | DWI |
| 21+ | BAC ≥ 0.08 | Yes | DWI |
| 21+ | BAC < 0.08 but impaired | Yes | DWI |
| 21+ | Any detectable alcohol (but not intoxicated) | No | Not a crime (unless CDL or other circumstance applies) |
This is why adults cannot be charged with DUI—if they are impaired or intoxicated, it becomes DWI.
Why Minors Can Be Charged With Both DUI AND DWI
Most people don’t realize a minor can face both charges depending on the facts.
Example:
- A 19-year-old drinks one beer → DUI
- A 19-year-old drinks enough to lose normal mental/physical faculties → DWI
Police frequently upgrade DUIs to DWIs when:
- There is a crash
- The minor refuses testing
- The minor performs poorly on sobriety tests
- The officer believes impairment exists
- The breath test is close to or over 0.08
This often leads to harsh consequences for young people.
Attorney Eric J. Benavides helps minors and families navigate these damaging charges and fight to protect their future opportunities.
How Police Determine DUI vs. DWI
Officers rely on:
- The driver’s age
- Observations of impairment
- Field sobriety tests
- Breathalyzer or blood results
- Driving behavior
- Statements from the driver
If the officer detects any alcohol in the system of a person under 21, that is enough for a DUI.
If the officer believes the driver—regardless of age—is impaired, they may file DWI.
Even small clues can lead to arrest:
- Smell of alcohol
- Bloodshot eyes
- Slurred speech
- Swaying
- Nervous behavior
- Admission of drinking
You do not need to fail a breath test to be charged with DWI. You do not need to blow over 0.08. You do not need to be driving badly.
What About Drugs? (Prescription, Illegal, or THC)
A key difference:
- DUI = alcohol only
- DWI = alcohol OR drugs
A minor with THC in their system can be charged with DWI, not DUI.
Adults can be charged with DWI for drugs such as:
- Marijuana
- Prescription medication
- Painkillers
- Anxiety medication
- Sleep medication
- Stimulants
- Illegal narcotics
Police rely on a Drug Recognition Expert (DRE) or blood tests in these cases.
Whether drugs actually impaired the driver is a major area for defense, and Attorney Benavides has extensive experience challenging these cases.
How License Suspensions Differ Between DUI and DWI
DUI License Suspension (Under 21)
- 60–180 days for first offense
- Longer for repeat offenses
- DPS may require SR-22 insurance
- Possible refusal suspension (through ALR)
DWI License Suspension
DWI suspensions can occur from:
- ALR suspension (from refusal or failure)
- Suspension from a conviction
- Enhanced suspensions for repeat offenses
DWI suspensions are far harsher and can last:
- 90 days to 1 year for first offense
- 1–2 years for second or third offenses
Many people qualify for an Occupational Driver’s License (ODL), which Attorney Benavides can help obtain.
Which Crime Stays on Your Record Longer? DWI or DUI?
DUI
A Class C DUI can sometimes be:
- Dismissed
- Reduced
- Sealed (nondisclosure)
- Removed through deferred disposition
DWI
A DWI is far more difficult to remove:
- Cannot be expunged unless case is dismissed or you are acquitted
- Convictions are permanent
- Remains on your record for life unless you qualify for a non-disclosure to partially seal your record
This is one of the reasons adults fight DWI charges so aggressively.
Consequences Beyond the Courtroom
Employment
- DWI convictions scare employers
- DUIs negatively affect minors applying for jobs
Insurance Rates
- DWI causes significant increases
- DUIs can also trigger rate hikes
College Admissions
A DUI can hurt:
- Scholarships
- Housing applications
- Financial aid
A DWI can be much worse.
Professional Licensing
A DWI can cause issues for:
- Nurses
- Teachers
- Engineers
- Real estate agents
- Pilots
- Commercial drivers
Immigration Consequences
For non-citizens, a DWI can:
- Complicate visa renewals
- Affect green card eligibility
- Trigger deportation in some cases
DUIs rarely cause immigration problems unless there's a pattern.
Common Defenses to DWI in Texas
Attorney Benavides examines every detail to build a strong defense. Common strategies include:
Challenging the Traffic Stop
If the officer lacked reasonable suspicion, the entire case can be dismissed.
Challenging Field Sobriety Tests
Most people don’t know these tests are:
- Not scientifically accurate
- Affected by nerves
- Misadministered frequently
- Hard even for sober people
Attorney Benavides reviews bodycam video to expose officer mistakes.
Challenging BAC Results
Breath and blood tests can be attacked based on:
- Machine issues
- Poor calibration
- Improper blood draw
- Fermentation
- Chain of custody errors
- Lab mistakes
Challenging the Definition of “Operation”
Sleeping in your car does not automatically mean you operated it.
Rising Alcohol Defense
Your BAC may have increased between the time of driving and the time of testing.
Why You Need a Lawyer Who Understands Both DUI and DWI
DUI and DWI defense are completely different skill sets.
DUI defense requires knowledge of:
- Minor-specific laws
- License consequences
- Zero-tolerance rules
- Juvenile court procedures
DWI defense requires knowledge of:
- Scientific testing
- ALR hearings
- Field sobriety challenges
- Criminal court procedures
- Expert witnesses
Attorney Eric J. Benavides handles both types of cases regularly and knows how to fight them in Harris County courts.
How Attorney Eric J. Benavides Can Help
Whether you are a:
- Parent of a teenager arrested for DUI
- Adult charged with DWI
- Minor charged with both
- Houston professional trying to protect your career
—you need experienced legal representation.
Eric provides:
- Careful case evaluation
- Aggressive defense strategies
- Scientific analysis of evidence
- Representation at ALR hearings
- Negotiation for reductions or dismissals
- Preparation for trial if necessary
His goal is always simple:
Keep the DWI or DUI off your record and protect your future.
Final Thoughts: DWI vs. DUI—Now You Know the Difference
The distinction between DWI and DUI in Texas is critical. For adults, DWI carries life-changing consequences. For minors, DUI can still damage college applications, insurance rates, and job opportunities.
But no matter which charge you face in Houston or Harris County, you have rights, and you have options.
Attorney Eric J. Benavides has helped countless individuals beaten down by the system rebuild their lives, protect their licenses, and fight unfair charges.
If you or a loved one is charged with DWI or DUI in Houston, call Attorney Eric J. Benavides immediately at (713) 222-2828.
Don’t face the system alone. Get the defense, protection, and peace of mind you deserve.