The elements of a DWI (Driving While Intoxicated) are defined in Texas Penal Code §49.09. The offense of driving while intoxicated is broken down as such:
- The defendant was intoxicated
- while operating
- a motor vehicle
- in a public place.
The term “operating” is important to understand. Under Texas law, one does not have to be
“driving” a motor vehicle at the time of the arrest to be cited and arrested for DWI. Texas case law has defined “operating” a vehicle very broadly. Any action taken by the defendant to affect the functioning of the vehicle can be considered “operating” a vehicle by the court. This is just one example of how courts interpret the different elements of a charge.
A good DWI attorney can help you understand how all the elements of the law are interpreted by the courts and what the state will need to prove the elements of a DWI.
In some states DWI and DUI (Driving Under the Influence) mean the same thing. In Texas, however, only a statutory minor, defined as “anyone under 21 years of age” under Texas Alcoholic Beverage Code Ann. § 106.041, can be prosecuted for a DUI. It is a matter of prosecutorial discretion as to whether a statutory minor will be charged with DUI or DWI. Under Texas Alcoholic Beverage Code Ann §106.041(g), a statutory minor only need be operating “a motor vehicle in a public place with any detectable amount of alcohol in [his] system” to be charged with DUI. The minor does not actually have to be “under the influence” despite the name. Any presence of alcohol or drugs is enough.
A DUI charge is a class C misdemeanor, while a DWI is typically a Class B misdemeanor. Some scenarios can create an up-charge on a DWI. For example, if a defendant’s BAC (Blood Alcohol Content) is higher than .15 that can result in a Class A misdemeanor or felony charge and stricter penalties. Also, under Texas Penal Code §47.07(a), if a DWI results in serious bodily injury it constitutes Intoxication Assault – a third degree felony.
If you have been charged with a DUI or DWI in Texas, you need an attorney who knows the law and can help you navigate the process. Call Dorman Bell, LLP today at 214.736.7168 or fill out the form in the sidebar.