Texas DUI vs. DWI: Know Your Rights if Pulled Over
DWI attorneys say to use your right to remain silent, and other tips
By David Levine | Reviewed by Canaan Suitt, J.D. | Last updated on September 20, 2024 Featuring practical insights from contributing attorneys Deandra M. Grant and Mark ThiessenUse these links to jump to different sections:
- When Can Law Enforcement Pull You Over for a DWI?
- Do You Have to Take the Breath Test or Field Sobriety Test?
- What Are the Consequences of a Texas DWI Conviction?
- Should You Get an Attorney for a DWI Charge?
- Find an Experienced DWI Lawyer
First, let’s talk about the difference between DWI and DUI.
DUI (driving under the influence) applies only to drivers under 21, says Mark Thiessen, a Houston-based attorney who focuses on this area of law. “Texas has a strict no-drinking policy for drivers under 21,” he says. For those drivers, any detectable amount of alcohol—on the driver’s breath or clothes or in the air from an open container in the vehicle—is an automatic Class C crime, like a speeding ticket or other moving violation. There is no need for further evidence, such as a sobriety test, to confirm DUI.
DWI (driving while intoxicated) is the sobriety test one. It’s a Class B felony, in which you are caught driving over the legal limit of .08 blood alcohol concentration (BAC).
When Can Law Enforcement Pull You Over for a DWI?
Law enforcement can pull a driver over for two reasons, Thiessen says:
- You committed a traffic violation—speeding, swerving, failing to signal
- Community caretaking—that is, police are notified that a driver may be intoxicated or come across a driver who appears to be in distress
If a traffic stop happens, what should you do?
“You should be polite, but do not volunteer information,” says Deandra M. Grant, a criminal defense attorney with offices in Dallas, Fort Worth, Denton, Allen, Waco, and Austin. “Most people’s mistake is answering a bunch of questions and not realizing the officer is investigating you… People hurt their cases more because they won’t shut up. You have the right to remain silent, and you should use it.”
Even police officers make this mistake, Thiessen confirms. “I had an officer who got into a wreck, and he was in the police car muttering, ‘I’m such an idiot, I’m never drinking and driving again,’” Thiessen says. “He basically confessed.”
Do You Have to Take the Breath Test or Field Sobriety Test?
You are not required to take a breathalyzer or field sobriety test, and Thiessen recommends accepting the former and declining the latter. “Take the breath test, even if you are not sure if you’re drunk. The breath test is a hunk of junk, and it is easier to beat [in court] than a blood test.”
So why decline the field test? Thiessen says it consists of “abnormal coordination exercises that you’ve never done before, and it’s almost guaranteed you are going to fail.” Sure, he says, some people walk a straight line in their day-to-day life, such as gymnasts and roofers, “But none of them have to do it heel touching toe, and keep their arms at their sides and looking down and not at the horizon.” As for the one-leg stand? “Even the Karate Kid got to raise his hands for balance.”
Thiessen adds: “If they are so easy and normal, why don’t they make sure we can do these to drive [in the first place]?”
What Are the Consequences of a Texas DWI Conviction?
The consequences of a DWI conviction can be enormous, Grant adds. “Your insurance rates might be affected. There may be employment implications. If a company offers a car as part of your salary, you’re probably not insurable, and they may not hire you. If your career path leads to needing security clearance, you may have problems.” In addition, she says, countries like Canada have strict laws about letting anyone with a DWI conviction into the country. You won’t lose your license on a first conviction if you complete the required program, but subsequent convictions will result in license suspensions of six months to two years.
Should You Get an Attorney for a DWI Charge?
For all these reasons, your first call should be to an attorney who is experienced in handling DWI cases. “If none are available, find someone who has been to multiple seminars and knows the laws,” Thiessen recommends. “Look at their training—do they know the science? Ask if they can explain the science of blood and breath testing. If they can’t explain it to you, they will never explain it to a jury.”
Grant adds that many people believe a charge of DWI is an automatic win for the prosecution. Not true, she says. “We win a lot of cases.”
Find an Experienced DWI Lawyer
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