Understanding DWI Charges in Texas | Houston DWI vs DUI Difference | Texas Guide
In Texas, DWI applies to any driver operating while intoxicated under Texas Penal Code § 49.04; DUI applies only to minors (under 21) with any detectable alcohol under Alcoholic Beverage Code § 106.041. DWI is a Class B/A or higher; DUI is generally Class C, with license consequences.
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DWI vs. DUI in Texas: What It Means in Houston
You’re here to understand the Houston DWI vs DUI difference and what it means for your case, license, and next steps. This page explains the legal definitions, who gets which charge, penalty snapshots, ALR deadlines, testing/refusal rules, aggravators, CDL/minor issues, the Houston court path, and how to get help.
DWI vs. DUI in Houston - The Short Answer
What this section covers. The plain-English distinction under Texas law, with a quick look at how Houston courts treat these charges.
What Texas law calls each offense
Under the Texas Penal Code § 49.04, DWI is operating a motor vehicle in a public place while “intoxicated.” “Intoxicated” is defined in Texas Penal Code § 49.01 as either 0.08 alcohol concentration or loss of normal mental/physical faculties. DUI is a separate offense for minors (under 21) with any detectable alcohol under the Alcoholic Beverage Code § 106.041, and is not a lesser-included offense of DWI.
Helpful hub reference: See the Full Houston DWI Laws Guide for deep dives, penalties, and license steps.
Which carries harsher consequences
DWI typically carries harsher criminal classifications (Class B/A or higher with priors/enhancers) under Texas Penal Code §§ 49.04, 49.09. DUI by a minor is generally a Class C offense under Alcoholic Beverage Code § 106.041. Outcomes may vary based on facts, priors, and aggravators.
Sources:
Texas Penal Code § 49.04 — Texas Constitution & Statutes;
Texas Penal Code § 49.01 — Texas Constitution & Statutes;
Alcoholic Beverage Code § 106.041 — Texas Constitution & Statutes
Texas Legal Definitions: DWI (§49.04) vs DUI (§106.041)
What this section covers. The statute language that sets elements, age limits, and definitions.
Elements prosecutors must prove (DWI)
To prove DWI in Texas, the State must show operation of a motor vehicle in a public place while intoxicated (≥0.08 or loss of faculties) under Texas Penal Code § 49.04 and § 49.01. Evidence may include breath/blood results and officer observations; specifics vary by case.
Zero-tolerance standard (DUI under 21)
DUI applies when a minor (under 21) drives with any detectable alcohol under the Alcoholic Beverage Code § 106.041. It is generally a Class C offense; license consequences may apply under other laws.
Sources:
Texas Penal Code § 49.04;
Texas Penal Code § 49.01;
Alcoholic Beverage Code § 106.041
Who Gets Charged With What? Age, Facts & Scenarios
What this section covers. How under-21 drivers are routed to DUI vs DWI, and how adults are assessed for DWI.
Under 21 traffic stops (DUI vs DWI possibility)
A minor may face DUI for any detectable alcohol under the Alcoholic Beverage Code § 106.041. If the facts show intoxication (≥0.08 or loss of faculties) under Texas Penal Code § 49.01, the State may charge DWI instead.
21+ with alcohol or drugs (DWI threshold)
Adults are evaluated for DWI under Texas Penal Code §§ 49.01, 49.04. Officers and courts look for 0.08 or signs of impairment from alcohol or drugs. Drug-only cases still proceed under the same “intoxicated” definition.
Sources:
Alcoholic Beverage Code § 106.041;
Texas Penal Code §§ 49.01, 49.04;
TxDOT — DUI or DWI?
Penalties at a Glance (First, Second, Third)
What this section covers. A high-level matrix only; full details live in the hub.
DWI penalty ranges (summary table)
| Offense | Charge Level (typical) | Notes |
|---|---|---|
| 1st DWI | Class B (min 72 hours jail) | Class A if BAC ≥ 0.15 |
| 2nd DWI | Class A | Prior conviction enhancement |
| 3rd DWI | 3rd-degree felony | Prison range applies |
| Open container | Min 6 days jail (with DWI) | Enhancement under §49.04(c) |
| Child passenger (<15) | State jail felony | §49.045 |
DUI (under-21) penalties (summary)
DUI by a minor is generally Class C under the Alcoholic Beverage Code § 106.041. Courts may order alcohol education and community service; separate license consequences may apply under transportation laws. Outcomes vary with age, facts, and history.
Mandatory traffic fines (Ch. 709)
Texas assesses a traffic fine (replacing old surcharges) in certain intoxication offenses: generally $3,000 for a first in 36 months; $4,500 for a second within 36 months; $6,000 if BAC ≥ 0.15, under Transportation Code Chapter 709.
Sources:
Texas Penal Code § 49.04; § 49.09;
Alcoholic Beverage Code § 106.041;
Transportation Code Ch. 709
License Impact: ALR, Deadlines & ODL Options
What this section covers. The ALR deadline, what the DIC-25 means, and basics of ODL eligibility.
ALR 15-day request window
After a DWI arrest or refusal, you may have 15 days from receiving notice (often the DIC-25) to request an ALR hearing with DPS. If no request is received, suspension commonly begins on the 40th day after notice. See DPS — Administrative License Revocation (ALR) Program and SOAH — Docket Services.
Need to request an ALR hearing? Act within 15 days to protect your license.
Occupational license (ODL) basics
Courts may grant an ODL to allow essential driving during a suspension under Transportation Code § 521 Subchapter L. Conditions often include proof, insurance, and sometimes ignition interlock (§ 521.246). An ODL does not authorize operating a commercial motor vehicle; see Transportation Code § 522.086 and § 521.2424 (limitations for CDL holders in non-CMV).
ALR timeline (simple)
- Day 0: Arrest/Notice (often DIC-25 issued).
- Days 1-15: Request ALR with DPS.
- Day 40: If no request, suspension generally takes effect.
- Hearing: Scheduled through SOAH (often by video).
Sources: DPS - ALR Program; DPS DIC-25; SOAH - Docket Services
ODL checklist (basics)
- Eligibility check
- Court petition and order
- Insurance proof
- Comply with any IID requirement
- No CMV driving allowed on ODL
Sources: DPS - ALR Program; DPS DIC-25; SOAH - Docket Services; Transportation Code § 521 Subchapter L; § 522.086
Testing & Refusal: Breath, Blood & Implied Consent
What this section covers. Warnings, ALR effects, admissibility of refusal, and a high-level note on blood warrants and breath testing programs.
Refusal consequences (immediate & ALR)
Texas’ implied-consent law requires officers to provide statutory warnings; refusing a specimen may trigger ALR and the refusal may be admissible at trial.
See Transportation Code § 724.015, § 724.061, and DPS – ALR Program.
Blood draws & warrants - when and how
If consent is refused, officers may seek a warrant for blood. Breath testing programs and operator/instrument certifications are overseen by DPS under 37 TAC Chapter 19; see DPS – Breath Alcohol Testing and 37 TAC Ch. 19.
Aggravators: Open Container, Child Passenger, Accidents
What this section covers. Enhancers that may raise minimums or offense levels.
Open container with a DWI stop
An open container with DWI increases the minimum jail term to 6 days under Texas Penal Code § 49.04(c). Open container is defined at Texas Penal Code § 49.031.
Child passenger / injury crash
DWI with a child passenger (<15) is a state jail felony under Texas Penal Code § 49.045. Crashes with serious injury may elevate charges depending on the facts and statutes used.
Sources: Texas Penal Code § 49.04(c); § 49.031; § 49.045
CDL & Licensed Professionals: Higher Stakes
What this section covers. CDL disqualifications, 0.04 rule in CMVs, and general considerations for licensed professionals.
CDL consequences (disqualification periods)
CDL holders face federal disqualifications for major offenses and BAC ≥ 0.04 while operating a CMV under 49 CFR § 383.51 (eCFR). Related guidance is published by FMCSA — Guidance & Resources. Disqualifications may apply even when incidents occur off-duty while driving a CMV.
Report-to-board considerations
Licensed professionals may have reporting or employment obligations that vary by board rules and case outcomes. Requirements differ widely; this page doesn’t provide board-specific advice.
CDL callout: CMV driving is not permitted on an ODL. See Transportation Code § 522.086.
Sources: 49 CFR § 383.51 (eCFR); FMCSA Guidance; Transportation Code § 522.086
Houston Process: From Arrest to Court & SOAH
What this section covers. The two parallel tracks: criminal court vs. license (ALR/SOAH).
Criminal case track (Harris County)
In Harris County, misdemeanor DWIs are handled in the County Criminal Courts at Law, while felonies are in District Courts. Schedules, bond conditions, and settings may vary. Check case details through the Harris County District Clerk – Criminal Courts.
ALR/SOAH track (separate from criminal)
The ALR case is a separate civil proceeding that focuses on your license and is heard by the State Office of Administrative Hearings. Many hearings are conducted by videoconference. See SOAH - Docket Services.
Helpful hub reference: For broader context, explore the Houston DWI law hub for details.
Sources: Harris County District Clerk - Criminal Courts; SOAH - Docket Services
Talk to a Houston DWI/DUI Attorney Today
What this section covers. Clear next steps and resources.
24/7 Free Consult + ALR deadline help
Speak with a Houston DWI/DUI attorney today about preserving your license and planning your defense. The ALR request window may be only 15 days from notice. See DPS – ALR Program and DPS DIC-25.
DWI vs DUI FAQs (Frequently Ask Questions)
DWI applies to any driver who is intoxicated; DUI applies only to minors with any detectable alcohol.
No. Texas law states DUI by a minor is not a lesser-included offense of DWI.
Generally 15 days from notice; without a request, suspension often starts on the 40th day.
Refusal avoids a BAC result but may trigger ALR and can be used as evidence.
Yes. It raises the minimum jail time to 6 days in a DWI case.
No. An ODL does not authorize operating a commercial motor vehicle.
0.04; violations may trigger CDL disqualification.
Yes. DPS oversees methods and certifications under 37 TAC Chapter 19.
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