In Texas, DWI refers to Driving While Intoxicated. It is not uncommon for people to refer to DWI as DUI, which is used in many other states.
However, there is a legal difference between DWI and DUI in Texas. A DUI is considered a Class C Misdemeanor, the lowest level offense, which is equivalent to a traffic ticket. It is a rare situation, one that you don’t see very often, but it does occur involving someone who is under 21 years of age. An example may be where police. With a Class C DUI, the evidence needs to show there is any detectable amount of alcohol in a person’s system. It can even be based solely on the officer’s testimony that he merely smelled alcohol on a person’s breath that qualifies for any detectable amount, and a person can be convicted for a DUI. Again, this offense only applies to minors.
It is a situation where an underage person is caught driving after drinking some alcohol. They can still be arrested, but the consequences and the range of punishment is much less, and the individual can usually get deferred adjudication on a DUI and keep be able to keep it off his or her record. However, deferred adjudication is NOT available for regular DWI in Texas.
Operating A Motor Vehicle While Intoxicated Results In DWI Charges
In Texas, in order to prove DWI, the State must prove that an individual was operating a motor vehicle while
intoxicated. The definition of DWI does not, however, require actual driving for a conviction. This is a big area of contention. In nearly 25% of DWI cases the issue is whether or not the individual was operating a motor vehicle or rather, can the State prove he or she was operating a motor vehicle. For example, if someone is sitting in a parking spot at Whataburger at 2 a.m., eating his food with the engine running, is that “operating” a motor vehicle? What if the car is in park? Surprisingly the case law in Texas would allow the State to argue that the above situation is indeed “operating” a motor vehicle even though it may not even be in motion and the person may not even be driving.
Defense attorneys argue these issues often. However, the case law just keeps getting worse and worse. Attorney Flood sees a lot of lawyers not arguing these issues when in reality, they should be. A DWI should be Driving While Intoxicated.