Here are some commonly asked questions regarding Driving While Intoxicated (DWI) that clients often ask me


What is the definition of Intoxication in Texas?

  • Intoxication can be proven 3 ways:
    1. Not having the normal use of your mental faculties
    2. Not having the normal use of your physical faculties
    3. Having an alcohol concentration of .08 or more

How much beer/liquor/wine will get me to .08?

  • This is very difficult to answer, because everyone’s body is different, and works differently.
  • As a general rule, 1 beer (12 ounces), 1 glass of wine (4 ounces), or 1 shot (1.5 ounces) will equal .02

What is the difference between DWI and DUI in Texas?

  • DWI is driving while intoxicated, and it is what you generally think of when you think “DWI”. They have to be able to prove that you were driving, and while you were driving you were intoxicated because your alcohol concentration is .08 or more, or you have lost the normal use of your mental or physical faculties
  • DUI is a charge that is given to minors in Texas who have ANY detectable amount of alcohol in their system. So even if they are only .01, if you are a minor that is DUI.  If you are over 21 and are driving with an alcohol concentration of .079 that is perfectly legal

If I am pulled over, should I answer questions about drinking?

  • You are under no legal obligation to answer any questions. Saying nothing is perfectly legal.  With that said, if an officer smells alcohol, or has some reason to believe you have been drinking, you are going to jail if you remain silent.
  • It is ok to tell an officer you had a couple of drinks. It is not illegal to have a few drinks and then drive.  Just make sure to tell them the truth if you just stopped drinking.  Sometimes people think that if they say, “yes I had a few drinks, but my last one was hours ago”, that it will help them.  In fact the opposite is true!  That is the worst thing you can say as the state will try to perform a calculation to “prove” that you in fact had way more to drink even if you didn’t.  It is best to tell them the truth and say, “yes, I had a couple of drinks, my last one was 10 minutes ago right before I left”.  That will be a more accurate portrayal of the situation.
  • On the other hand, if you are absolutely wasted, then politely ask for a lawyer, don’t answer any questions or do any tests. I mean, you are going to get arrested anyway!!
  • Remember that you are being recorded!!

If I am pulled over, should I do the Standard Field Sobriety Tests?

  • No
  • These tests are hard. That is a fact.  Who the heck walks a straight line heel to toe, looking down, and not using their arms?  Or balancing on one leg for 3 seconds without looking up, and not using your arms?  I honestly believe they are designed for you to fail.
  • With that said, again, if you refuse you are going to be arrested, but if you are intoxicated the truth will find a way to come forward
  • Respectfully decline these tests and ask for a lawyer
  • Remember that you are being recorded!!

Should I take a blood or breath test?

  • My typical advice is if you HAVE NOT HAD ANYTHING TO DRINK, take the breath test.
  • If you have had any alcohol, I would refuse. These machines are just not accurate.  Too much can go wrong with them, and I would not put my life in the hands of one of these machines.
  • I would refuse blood also. You never know what is going to happen to your blood once its out of your body.  You don’t know who is touching it, where it is stored, who is testing it, and whether the testing is accurate.
  • Why would you ever volunteer evidence against you?
  • If they want to go the extra mile and get a search warrant to enter your body and take blood then so be it. But make them work for it, don’t just hand them evidence they are going to use against you.

What are the consequences if I refuse?

  • The biggest consequence is that your DPS ALR driver’s license suspension can from 90 days to 180 days if it is a first DWI. (See my ALR section for more info)
  • But as far as the criminal case goes there are no negatives. The DA might argue that you were hiding evidence, but we will just argue that you weren’t trying to do their job for them, and we will argue that these tests aren’t 100% accurate, so why would anyone take them.

Can I lose my drivers license if I am arrested and/or convicted for DWI?

  • Yes, please read my Administrative License Revocation (ALR) hearing for more information on license suspensions based solely on the fact that you were arrested.
  • Generally if it is a 1st DWI, DPS can suspend your license 90 days if you consent to a breath test and fail, or 1 year if you refuse to provide a sample.
  • If it is your second DWI within 10 years, they can suspend your license up to 2 years. It all depends on the type of license and the person’s history.  I talk about this in depth in my ALR section.
  • With regards to court, the criminal judge can suspend your license as well. On a 1st DWI, if you are convicted and take a jail sentence (or fine only) the judge can suspend your driver’s license between 90 days and 1 year.  In Harris County they almost always do 1 year.
  • If you take probation on a 1st time DWI the court will not suspend your Texas driver’s license
  • On a 2nd DWI, the judge will suspend your license even if you take probation. For a chart on potential license suspensions, see my section “DWI CONSEQUENCES IN TEXAS”

How long will a DWI be on my criminal record?

  • The answer used to be forever, no matter if you got probation.
  • But recently, some 1st time DWIs (under .15, no accident, probation, and interlock for 6 months) are eligible to get their record sealed after a certain amount of time through a Petition for Non-Disclosure.
  • A Non-Disclosure is a type of sealing the record that will seal the record for the general public (but will forever be visible to law enforcement, the government, and governmental agencies)
  • For more information on this, and a more in depth analysis, see my record sealing section, more specifically by “NON-DISCLOSURES FOR DWI” section.

Can I drink alcohol while I am driving if I am not drunk?

  • No
  • It is a class C misdemeanor (punishable by a fine up to $500) to be drinking while you are driving, or having an open container while you are driving. Your passengers may not have alcoholic beverages either.
  • Is it ok to transport a half bottle of wine or liquor?
  • Yes, but you should store it in your trunk in a car (or behind last row of seats in an SUV). It is a semi-gray area, and technically if it is not sealed it is an open container, but most officers are reasonable if it is in an area that is not accessible to passengers.

Will I have to put an ignition interlock in my car if I get charged with DWI?

  • If it is a first DWI it is up to the judge. The judges set the bond conditions in their court.
  • In Harris County we are seeing more and more judges going to mandatory interlock no matter what the situation, other counties vary judge to judge
  • If it is a second DWI, then it is statutory (by law) to have an ignition interlock on your vehicle
  • If you have a breath or blood test of .15 then the court will place an interlock in your vehicle as well

What is an Ignition Interlock?

  • It is a device installed in your vehicle that you will have to provide a breath sample on before you can turn the car on
  • If you blow into the device with alcohol in your system, it can potentially lock you out, and make it impossible to turn on your car
  • Every breath test you take is registered on a log and sent to the court. It is very important to never drink when you are on bond.  You might have drank the night before, but this machine could potentially pick up a small amount of alcohol from hours ago.
  • If the court sees even small amounts of alcohol registered on your reports, the judge can revoke your bond and send you back to jail
  • You are only allowed to drive a vehicle with the ignition interlock installed
  • You will have to send $10 to DPS (they will send you a letter) to get a new interlock restricted driver’s license

What if I don’t have a car at the moment?

  • If you are ordered to have an interlock device and do not have a car, most judges will have you sign a non-driving affidavit and order that you get a portable (in home) interlock
  • There are various types of portable interlocks (at home, handheld, ankle “SCRAM” monitors)
  • Portable devices are typically more expensive than vehicle interlocks
  • Portable devices typically put you on a blow schedule where you have to blow a certain amount of times a day in between certain hours
  • A SCRAM device is an ankle monitor that monitors you 24 hours a day, and typically costs around $400 a month. These are usually reserved for people who are having problems on bonds, or given by very unreasonable judges
  • What is an Occupational License
  • It is a special license that a judge can give you that gives you permission to drive while your license is suspended.
  • Where you apply for this, and what you qualify for depends on why your license is suspended, who suspended it, and how many times you have previously had a suspended license or occupational in the past.
  • For specific questions, just give me a call, I could write a book on this one.

Can I get deferred adjudication for DWI?

  • No
  • In Texas DWI is not eligible for Deferred Adjudication

Can I get probation for DWI?

  • Yes
  • Most DWIs are eligible for probation, and now some are even able to be sealed. See my section under record sealing, “Non-Disclosures for DWI” for more details.

What is the difference between deferred adjudication and probation?

  • Deferred Adjudication is not a finding of guilt. When you plea guilty, the judge withholds a finding of guilt and lets you do probation.  If you successfully complete your deferred adjudication probation, you will never have a conviction.
  • Probation is a finding of guilt. When you plea guilty, the judge automatically finds you guilty and that is a conviction on your record.  These used to be lifetime convictions, but not some DWI probations are eligible to be sealed.  See my section under record sealing, “Non-Disclosures for DWI” for more info.

What is a felony DWI?

  • You can be charged with a felony for DWI if:
    1. You have 2 prior DWI convictions and this is your 3rd offense
    2. You had a child in your vehicle under 15 years of age
    3. You were in an accident and someone was seriously injured
    4. You were in an accident and someone was killed