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DUI/DWI Basics

You've listened to the public service announcements on the radio. You've seen the commercials. You know that Driving While Intoxicated (DWI) is a crime. You also know that it kills people. Still, many people who drink end up driving themselves home. Even if you only have a drink or two, you worry about getting stopped on the way back. Are you legally considered intoxicated? Could you be arrested?

In Texas, intoxication is legally defined in the following way:

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 having an alcohol concentration of 0.08 or more.  (Texas State Penal Code, § 49.0)

So, if you have a blood alcohol limit below .08 but are still mentally impaired, you can be arrested for DWI. Conversely, if you have a blood alcohol limit above .08, you are legally drunk whether you are actually impaired or not. Tricky, isn't it? That's why it's always best to have a designated driver who doesn't drink at all or take a cab. If you're drinking at a friend's house, sleep on the couch or floor and go home in the morning. Above all, don’t drive. Why take a chance with your life or someone else’s?


Also, if you're under 21, you can be charged with Driving Under the Influence (DUI) if you have any detectable level of alcohol in your blood at all. You don't have to be intoxicated to be charged with DUI, they just have to be able to prove that you've had a drink. The penalties for a Texas DUI charge are less severe than those for a Texas DWI charge. However, if you are actually intoxicated you can still get charged with DWI instead of DUI.

Of course, sometimes people make bad decisions. If you drink and drive, of course the most serious risk you face is the risk of an accident. However, even if you are lucky and “only” get busted, a Texas DWI charge is still a nightmare.  If you get pulled over and the police officer believes you are drunk, he will likely make you perform a series of field sobriety tests: walking in a straight line, standing on one leg, reciting your ABC's backwards, etc.


Fail these, and you'll be carted off to jail and asked to take a breath test or perhaps a blood test. If you refuse the test, you'll be guilty of violating the implied consent law, which states that by driving a vehicle you consent to have your blood alcohol concentration tested if a police officer requests it. Your license will then be suspended for 180 days. If you take the test and fail, you will be charged with Texas DWI and the results of the test will be used against you in court. Your license will also be confiscated and you will be notified that the state plans to suspend it.

Also, as you can see from reading the legal definition of “intoxication,” it’s not just alcohol you have to worry about. Taking drugs, legal or otherwise, before driving can also land you with a Texas DWI charge. Even over-the-counter antihistamines can sometimes affect your mental state, so if allergy medicine makes you giddy, you really shouldn’t drive after taking it.

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