DWI vs DUI in Texas

What is the difference between a DWI and a DUI in Texas?

Two statutes, in two different codes. Penal Code § 49.04(a) makes it an offense to be intoxicated while operating a motor vehicle in a public place, at any age. Alcoholic Beverage Code § 106.041(a) makes it an offense for a minor to operate a motor vehicle in a public place with any detectable amount of alcohol.

The thresholds are what separate them. Section 49.01(2) defines intoxicated two ways: an alcohol concentration of 0.08 or more, or not having the normal use of mental or physical faculties by reason of alcohol, a controlled substance, a drug, a dangerous drug, or a combination. Section 106.041 asks for neither. Any detectable amount of alcohol in the minor’s system is the whole element.

Minor means under 21. Section 106.01 defines it that way for the whole code, so a 20-year-old driver sits inside § 106.041 and a 21-year-old does not.

The two are not one charge at two strengths. Section 106.041(g) says an offense under that section is not a lesser included offense under § 49.04, 49.045, 49.06, or 49.061 of the Penal Code. Nothing in § 49.04 sets an age either, so a driver under 21 whom the State can show was intoxicated is charged with DWI. The DUI statute is there for the minor the State cannot show that about, and any detectable amount is enough to reach them.

What does a Texas DUI charge actually mean?

A Class C misdemeanor on a first offense. Section 106.041(b) sets that level, and Penal Code § 12.23 punishes a Class C misdemeanor by a fine not to exceed $500. No jail term attaches, and § 106.041(i) lets a peace officer issue a citation rather than take the minor into custody.

Community service does attach, and the statute sets the hours rather than the court:

• Not less than 20 or more than 40 hours where the minor has not been previously convicted of an offense under the section (§ 106.041(d)(1)).
• Not less than 40 or more than 60 hours where the minor has been previously convicted (§ 106.041(d)(2)).
• The service itself must be related to education about or prevention of misuse of alcohol (§ 106.041(e)).

A third offense is where the ceiling moves. Section 106.041(c) applies where the defendant is a minor who is not a child and who has been previously convicted at least twice under the section, and it punishes that offense by a fine of not less than $500 or more than $2,000, confinement in jail for a term not to exceed 180 days, or both. Subsection (f) closes the usual exit at the same point: a minor with two or more previous convictions under the section is not eligible for deferred disposition or deferred adjudication.

Two things that are not convictions still count as previous convictions here. Section 106.041(h) treats an adjudication under Title 3 of the Family Code that the minor engaged in the conduct as a conviction under the section, and treats an order of deferred disposition the same way.

How do the penalties compare?

The gap is widest at the first offense: up to $500 and no jail on a DUI under Penal Code § 12.23, against up to $2,000 and a minimum of 72 hours on a DWI under § 12.22 and § 49.04(b). The table sets first offense against first offense, and the caption names the statute behind every row.

One row of money is missing from the DUI column because the statute never charges it. Transportation Code § 709.001(b)(1) adds a separate $3,000 on a first DWI conviction within a 36-month period, and subsection (b)(3) makes that $6,000 where an analysis showed an alcohol concentration of 0.15 or more. Nothing of the kind attaches to a § 106.041 DUI.

The suspension row is the one that lands early, because it turns on the arrest rather than on the conviction. Administrative License Revocation is a civil case run by the Department of Public Safety, and Transportation Code § 524.022(b) sets the minor periods at 60 days, 120 days with one previous conviction, and 180 days with two or more, against the adult periods in subsection (a). What a DWI carries beyond that, offense level by offense level, is in the guide to Texas DWI penalties.

Which class does each one require?

Different programs, on different clocks. A probated DWI sentence orders an education program completed before the 181st day after supervision is granted, under art. 42A.403(a). A DUI conviction orders an alcohol awareness program, with evidence of completion due within 90 days of final conviction under § 106.115(c).

The DWI side is Code of Criminal Procedure art. 42A.403(a), which requires a judge placing someone on community supervision for an offense under §§ 49.04–49.08 to order an educational program designed to rehabilitate persons who have driven while intoxicated, regulated by the Texas Department of Licensing and Regulation under Chapter 171 of the Government Code. That is the 12-hour DWI Education class.

The DUI side is § 106.115, and it runs on conviction and on deferred disposition alike. Subsection (a-1) requires a court convicting a minor under § 106.041 to order a defendant with no previous conviction to successfully complete an alcohol awareness program or a substance misuse education program, and leaves it to the court where there is a previous conviction. Subsection (a)(1) is the deferred disposition route, and it names the program the same way art. 42A.403 names its own: regulated under Chapter 171, Government Code. That is the 6-hour Alcohol Education for Minors class.

The name trap: the 12-hour DWI Education class is widely listed as “the DUI class”, and it is not the class a § 106.041 DUI orders. A minor who books on the name pays for a program their order does not name and still owes the alcohol awareness one. Read the program name off the order before you enroll in either.

Finishing the DUI program early is worth money, and missing it costs the license. Section 106.115(c) lets the court reduce the assessed fine to no less than half where the evidence arrives inside the 90 days, and lets the court extend that period by not more than 90 days for good cause. Subsection (d) is the other direction: where the evidence does not arrive, the court shall order the Department of Public Safety to suspend the license or permit for a period not to exceed six months, or not to exceed one year where the minor has a previous conviction under one of the listed sections.

Both programs are ours, and both run live over Zoom. What we cannot tell you from here is which one your paperwork names. Send us a photo of the order, or have it in front of you when you call, and we will read the program name off it before you pay for anything.