Have you been charged with driving while intoxicated or possession of alcoholic beverage in a motor vehicle? There are many questions associated with a DWI.
Did the police have the right to stop my vehicle?
Will I lose my driver’s license?
Will I have to go to jail?
Will I have a criminal record after this?
I can answer these questions and help you with your DWI case.
What follows are the laws in Texas and some discussion of definitions that pertain to each. This is merely for informational purposes and should not be construed as legal advice.
The first law is driving while intoxicated. It involves four elements: (1) operating (2) a motor vehicle (3) in a public place (4) while intoxicated.
The law directly from the Texas Penal code is as follows:
DRIVING WHILE INTOXICATED. (Texas Penal Code Sec. 49.04)
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.55, eff. Sept. 1, 1995.
The Texas Penal code defines “intoxicated” as “not having 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.
“Motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks. A bulldozer has been found to match this definition.
Punishment for DWI:
(1) First Offense
- Class B misdemeanor – punishment range of 72 hours to 180 days in county jail or up to $2,000.00 fine or any combination thereof.
- Possible driver’s license suspension
- If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(2) Second Offense
- Class A misdemeanor – punishment range of 30 days to 1 year in county jail or up to $4,000.00 fine or any combination thereof.
(3) Third Offense
- 3rd Degree Felony – punishment range of 2 to 10 years in a State prison or up to a $10,000.00 fine or any combination thereof.
These can be enhanced further under certain circumstances.
BOATING WHILE INTOXICATED. (Sec. 49.06.)
(a) A person commits an offense if the person is intoxicated while operating a watercraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE. (Texas Penal Code Sec. 49.031.)
(a) In this section:
(1) ”Open container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
(2) ”Passenger area of a motor vehicle” means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3) ”Public highway” means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.
Added by Acts 2001, 77th Leg., ch. 969, Sec. 2, eff. Sept. 1, 2001.