If you were recently pulled over in Austin and charged with a driving offense involving alcohol or drugs, you may be wondering: what exactly is the difference between a DUI and a DWI in Texas? Are they the same thing? Which one is more serious? And what happens to you now?
These are questions Brian Erskine hears constantly as a board-certified criminal defense attorney in Austin. The confusion is understandable – in many states, DUI and DWI are used interchangeably. In Texas, they are two separate offenses with very different consequences depending on who was driving and what was in their system.
This post explains everything you need to know.
What Does DWI Mean in Texas?
DWI stands for Driving While Intoxicated. In Texas, this is the charge that applies to adults – anyone 21 years of age or older – who operate a motor vehicle in a public place while intoxicated.
Under Texas law (Texas Penal Code § 49.04), “intoxicated” means one of two things:
- Having a blood alcohol concentration (BAC) of 0.08% or higher, OR
- Not having the normal use of mental or physical faculties due to the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or any combination of those substances.
That second definition is important and often overlooked. You can be charged with DWI in Texas even if your BAC is below 0.08% – if an officer believes your faculties are impaired, that is enough to make an arrest. This means prescription medications, marijuana, and even over-the-counter drugs can lead to a DWI charge.
What Does DUI Mean in Texas?
DUI stands for Driving Under the Influence. In Texas, DUI is a separate, lesser offense that applies exclusively to minors – anyone under the age of 21.
Under the Texas Alcoholic Beverage Code § 106.041, a minor commits DUI if they operate a motor vehicle in a public place while having any detectable amount of alcohol in their system.
Read that carefully: any detectable amount. A minor does not need to be visibly impaired or have a BAC over 0.08%. Even one sip of alcohol that registers on a breathalyzer is enough for a DUI charge in Texas.
This is Texas’s zero-tolerance policy for underage drinking and driving.
DUI vs DWI in Texas: Side-by-Side Comparison
| DUI | DWI | |
|---|---|---|
| Who it applies to | Minors under 21 | Adults 21 and older |
| BAC threshold | Any detectable amount | 0.08% or higher (or impaired faculties) |
| Classification | Class C Misdemeanor | Class B Misdemeanor (first offense) |
| Jail time | None for first offense | Up to 180 days |
| Fine | Up to $500 | Up to $2,000 |
| License suspension | 60–180 days | 90 days–1 year |
| Criminal record | Yes | Yes |
DWI Penalties in Texas: What Adults Face
A first-offense DWI in Texas is a Class B Misdemeanor and carries the following penalties:
- Up to 180 days in county jail (minimum 72 hours)
- Fine up to $2,000
- Driver’s license suspension for 90 days to 1 year
- Annual surcharge of $1,000–$2,000 for 3 years to keep your license
- Possible ignition interlock device requirement
- Permanent criminal record
A second DWI becomes a Class A Misdemeanor:
- Up to 1 year in county jail (minimum 30 days)
- Fine up to $4,000
- License suspension up to 2 years
A third DWI is a third-degree felony:
- 2 to 10 years in state prison
- Fine up to $10,000
- License suspension up to 2 years
If your BAC was 0.15% or higher at the time of arrest, even a first offense becomes a Class A Misdemeanor – the same level as a second DWI.
DUI Penalties in Texas: What Minors Face
A DUI for a minor in Texas is a Class C Misdemeanor for a first offense:
- Fine up to $500
- 60-day driver’s license suspension
- 20 to 40 hours of community service
- Mandatory alcohol awareness course
- No jail time for a first offense
However, if the minor’s BAC is 0.08% or higher – or if they are clearly intoxicated – they can be charged with DWI instead of DUI, even as a minor. DWI is the more serious charge and carries adult-level penalties even for teenagers.
A second DUI offense for a minor increases penalties significantly, including up to a 180-day license suspension and up to 60 days of community service.
Can a DUI or DWI Be Expunged in Texas?
This is one of the most common questions after a charge, and the answer depends on the outcome of your case.
For DUI (minors): If you are a minor charged with DUI and the case is dismissed or you are acquitted, you may be eligible for expunction. If you completed deferred adjudication, you may qualify for an order of non-disclosure once a waiting period has passed.
For DWI (adults): Texas law is stricter here. A DWI conviction generally cannot be expunged. However, under Texas’s Second Chance law (Senate Bill 1902), adults who receive deferred adjudication for a first-offense DWI may be eligible for an order of non-disclosure – meaning the record is sealed from most public searches, though not fully erased.
An experienced Austin DWI attorney can review your specific situation and tell you exactly what record-clearing options are available to you.
5 Defenses That Can Beat a DWI or DUI Charge in Texas
Just because you were charged does not mean you will be convicted. Brian Erskine has successfully defended hundreds of DWI and DUI cases in Travis County using these and other defenses:
1. The traffic stop was illegal. Police must have reasonable suspicion to pull you over. If the stop was unlawful, any evidence gathered – including your breathalyzer result – may be inadmissible in court.
2. The breathalyzer was inaccurate. Breathalyzer machines require regular calibration and maintenance. If the device was not properly maintained or the officer was not properly trained to use it, the results can be challenged.
3. Field sobriety tests were improperly administered. Field sobriety tests (walk-and-turn, one-leg-stand, horizontal gaze nystagmus) must follow strict National Highway Traffic Safety Administration guidelines. Deviations from those guidelines can make the test results unreliable.
4. Rising blood alcohol. Alcohol continues to absorb into the bloodstream after your last drink. Your BAC at the time of the test may have been higher than your BAC at the time you were actually driving – this is a legitimate and frequently used defense.
5. Medical conditions. Conditions including acid reflux, diabetes, and certain neurological disorders can cause false breathalyzer readings or mimic signs of intoxication during field sobriety tests.
What to Do If You Are Charged with DUI or DWI in Austin
The steps you take immediately after an arrest significantly impact the outcome of your case. Here is what to do:
Step 1 – Stay silent. You have the right to remain silent. Do not explain, justify, or apologize to the officer. Anything you say will be used against you.
Step 2 – Do not refuse a breathalyzer without understanding the consequences. Texas has an implied consent law — refusing a chemical test results in an automatic 180-day license suspension for a first refusal, even if you are never convicted.
Step 3 – Request an ALR hearing within 15 days. After a DWI arrest in Texas, you have only 15 days to request an Administrative License Revocation (ALR) hearing to fight your license suspension. Missing this deadline means automatic suspension.
Step 4 – Call a board-certified DWI attorney immediately. The earlier you involve an attorney, the more options you have. Evidence can be preserved, witnesses identified, and legal challenges filed before they become unavailable.
Why Board Certification Matters for Your DWI Defense
Not every criminal defense attorney in Austin is the same. Brian Erskine holds board certification in criminal law from the Texas Board of Legal Specialization — a designation held by fewer than 3% of Texas attorneys. This means he has demonstrated exceptional knowledge, experience, and peer-reviewed professionalism in criminal defense.
With 70+ jury trials and over 20 years defending clients in Travis County, Brian knows the prosecutors, the courts, and the defenses that work.
Frequently Asked Questions
Is a DUI worse than a DWI in Texas?
No – a DWI is the more serious charge. DUI in Texas is a Class C misdemeanor that applies only to minors with any detectable alcohol. DWI is a Class B misdemeanor or higher and applies to adults. A minor can also be charged with DWI if their BAC exceeds 0.08%.
Can I get a DWI in Texas if I’m not drunk?
Yes. Texas law allows a DWI charge if your normal mental or physical faculties are impaired – even if your BAC is below 0.08%. Prescription drugs, marijuana, and other substances can support a DWI charge.
What happens to my driver’s license after a DWI in Texas?
Your license can be suspended for 90 days to 2 years depending on the offense. You have 15 days from the date of arrest to request an ALR hearing to contest the suspension. An attorney can handle this on your behalf.
Can a DWI be reduced to a lesser charge in Texas?
In some cases yes – depending on the evidence, your criminal history, and the skill of your attorney. Possible outcomes include reduction to obstruction of a highway, dismissal through pretrial diversion, or deferred adjudication.
Talk to an Austin DWI Attorney Today – Free Consultation
Whether you are facing a DUI as a minor or a DWI as an adult, the decisions you make in the first 48 hours after your arrest matter enormously. Brian Erskine offers free consultations for all DWI and DUI cases in Travis County and the surrounding areas.
Call 512-359-3030 today or visit traviscountycriminalattorney.com/dwi-attorney-austin/ to learn how Brian can help protect your license, your record, and your future.