Texas DWI Frequently Asked Questions | Mark Morales & Associates

Question 1

What exactly is a DWI in Texas — is it different from a DUI?

Accepted Answer

Yes. In Texas, DWI (Driving While Intoxicated) applies to adults 21 and older and requires proof that you lost the normal use of your mental or physical faculties due to alcohol or drugs, or that your blood alcohol concentration (BAC) was 0.08 or higher. DUI (Driving Under the Influence) is a separate, lesser charge that applies only to minors under 21 who have any detectable amount of alcohol in their system — even below 0.08. Most adult cases are charged as DWI.

Question 2

Do I have to take the field sobriety tests?

Accepted Answer

No. Field sobriety tests — the walk-and-turn, one-leg stand, and horizontal gaze nystagmus — are voluntary in Texas. You are not legally required to perform them, and politely declining cannot be used as evidence of guilt. These tests are highly subjective and designed to generate evidence against you. Many sober people fail them due to nerves, medical conditions, uneven pavement, or poor lighting. We generally advise clients not to perform them.

Question 3

Do I have to take the breathalyzer or blood test?

Accepted Answer

Texas has an implied consent law, which means that by driving on Texas roads you have already consented to chemical testing if lawfully arrested for DWI. Refusing a breath or blood test triggers an automatic license suspension (180 days for a first refusal) and the refusal itself can be used against you at trial. However, refusal also means the state has no chemical evidence of your BAC — which can sometimes help your defense. This is a nuanced decision best made with an attorney. If you refused, call us immediately.

Question 4

What should I do — and not do — right after a DWI arrest?

Accepted Answer

Do: remain calm, identify yourself if asked, and invoke your right to remain silent. Do not: answer questions about where you were, what you drank, or how much — anything you say will be used against you. Do not post anything about the arrest on social media. Do not contact the arresting officer or try to explain yourself. Call an attorney as soon as possible. The first 15 days after your arrest are critical for protecting your driver's license.

Question 5

Can the officer arrest me for DWI even if I passed the breathalyzer?

Accepted Answer

Yes. A BAC below 0.08 does not automatically mean you are sober in the eyes of Texas law. An officer can still arrest you if they believe you have lost the normal use of your mental or physical faculties — for example, due to prescription medication, marijuana, or a combination of substances. These cases are harder for the state to prove, but they do happen. If you were arrested despite a low or zero BAC, that is a strong defense angle we will pursue.

Question 6

What is the 15-day rule and why does it matter so much?

Accepted Answer

When you are arrested for DWI in Texas, the Department of Public Safety (DPS) automatically moves to suspend your driver's license. You have exactly 15 days from the date you received notice of the suspension to request an Administrative License Revocation (ALR) hearing. If you miss that window, your license is suspended automatically — no hearing, no second chance. Requesting the ALR hearing pauses the suspension and gives us an opportunity to fight it. It also lets us subpoena the arresting officer and lock in their testimony before your criminal trial.

Question 7

How long will my license be suspended?

Accepted Answer

If you failed a breath or blood test (BAC 0.08 or higher), a first-offense suspension is 90 days. If you refused testing, it is 180 days. A second or subsequent offense carries longer suspensions. These are the administrative suspensions — separate from any suspension imposed as part of a criminal conviction. Fighting the ALR hearing can prevent or shorten the suspension entirely.

Question 8

Can I get an occupational license to drive to work while my license is suspended?

Accepted Answer

Yes. An Occupational Driver's License (ODL) allows you to drive for essential activities — work, school, medical appointments, and household necessities — during a suspension. We file the petition with the court, provide the required proof of financial responsibility (SR-22 insurance), and represent you at the hearing. Most people can obtain an ODL within a few weeks of applying.

Question 9

Will I have to install an ignition interlock device?

Accepted Answer

Possibly. Texas courts can require an ignition interlock device (IID) as a condition of bond, probation, or an occupational license. For a first DWI conviction, an IID is mandatory if your BAC was 0.15 or higher. For repeat offenses, it is almost always required. The device requires you to blow into it before starting your car and at random intervals while driving. If you are required to use one, we will make sure you understand all the requirements to avoid a violation.

Question 10

What are the penalties for a first DWI in Texas?

Accepted Answer

A first-offense DWI in Texas is a Class B misdemeanor, carrying 72 hours to 180 days in jail, a fine up to $2,000, and a license suspension of 90–365 days. If your BAC was 0.15 or higher, it is elevated to a Class A misdemeanor with up to one year in jail and a $4,000 fine. You will also face an annual surcharge of $1,000–$2,000 for three years to keep your license. These are the maximum penalties — a skilled defense attorney works to reduce or avoid them.

Question 11

What happens if I have a child in the car?

Accepted Answer

DWI with a child passenger — any person under 15 years old in the vehicle — is a state jail felony in Texas, regardless of whether it is your first offense. It carries 180 days to 2 years in a state jail facility and a fine up to $10,000. This is a serious charge that requires aggressive defense from the start.

Question 12

Will a DWI conviction affect my job or professional license?

Accepted Answer

It can. Many employers conduct background checks, and a DWI conviction is a criminal record that shows up. For licensed professionals — nurses, teachers, CDL holders, lawyers, healthcare workers — a DWI can trigger a licensing board investigation and potentially affect your ability to practice. We take these collateral consequences seriously and factor them into our defense strategy from day one.

Question 13

Can a DWI be expunged or sealed in Texas?

Accepted Answer

A DWI conviction cannot be expunged. However, under recent Texas law, a first-time DWI misdemeanor conviction with a BAC below 0.15 may qualify for an Order of Non-Disclosure (record sealing) after a waiting period — two years if you used an ignition interlock device during probation, or five years otherwise. If your case was dismissed or you were acquitted, you may qualify for a full expungement. We evaluate every client's eligibility and pursue the best available record relief.

Question 14

How can a DWI charge actually be beaten?

Accepted Answer

There are several strong defense angles. We examine whether the officer had valid reasonable suspicion to pull you over in the first place — an illegal stop can result in all evidence being thrown out. We scrutinize the administration of field sobriety tests for officer error or environmental factors. We challenge breathalyzer results by reviewing the machine's calibration and maintenance records. For blood draws, we audit the chain of custody and lab procedures. Any break in the chain or procedural error can undermine the state's evidence significantly.

Question 15

Can the breathalyzer result be wrong?

Accepted Answer

Yes. Breathalyzer machines must be properly calibrated and maintained, and the test must be administered correctly. Certain medical conditions — acid reflux, diabetes, a high-protein diet — can produce falsely elevated readings. Mouth alcohol from recent use of mouthwash, breath spray, or certain medications can also skew results. We request the machine's maintenance logs and calibration records in every DWI case and work with experts when the science is in question.

Question 16

What if I was on prescription medication, not alcohol?

Accepted Answer

Texas DWI law covers impairment from any substance — including legally prescribed medications. However, these cases are harder for the state to prove because they typically require a Drug Recognition Expert (DRE) evaluation and toxicology evidence. We challenge the DRE's methodology, the blood test results, and whether the medication actually impaired your driving. Having a valid prescription is not a complete defense, but it is a significant factor in how we approach the case.

Question 17

What is deferred adjudication and can I get it for a DWI?

Accepted Answer

Deferred adjudication is a form of probation where you plead guilty or no contest, but the judge defers a finding of guilt. If you complete probation successfully, there is no formal conviction on your record. However, Texas law specifically prohibits deferred adjudication for DWI — it is one of the few offenses excluded. This is why having an attorney who can fight the charge outright or negotiate a reduction to a lesser offense (such as obstruction of a highway) is so important.

Question 18

What does it mean to get a DWI reduced to 'obstruction of a highway'?

Accepted Answer

Obstruction of a highway passage is a Class B misdemeanor that does not carry the same long-term consequences as a DWI — no mandatory surcharges, no automatic license suspension, and it may be eligible for expungement in some circumstances. Prosecutors sometimes agree to this reduction when the evidence is weak or when a defendant has no prior record and strong mitigating factors. It is not guaranteed, but it is a real outcome we pursue when the facts support it.

Question 19

What are the penalties for a second or third DWI in Texas?

Accepted Answer

A second DWI is a Class A misdemeanor: 30 days to one year in jail, up to $4,000 in fines, and a license suspension of 180 days to two years. A third DWI is a third-degree felony: 2–10 years in prison and up to $10,000 in fines. Repeat offenses also carry mandatory ignition interlock requirements and significantly higher annual surcharges. The stakes are much higher with each subsequent offense, and the need for experienced legal representation increases accordingly.

Question 20

I was arrested for DWI but I wasn't driving — I was parked and sleeping it off. Can I still be charged?

Accepted Answer

This is one of the most common questions we hear. Texas law requires that you were 'operating' a motor vehicle while intoxicated. Courts have interpreted 'operating' broadly — sitting in the driver's seat with the keys in the ignition, or even just having the engine running for the air conditioning, has been found sufficient. However, being asleep in a parked car with no keys in the ignition is a much stronger defense. The specific facts matter enormously. Call us and walk us through exactly what happened.

Question 21

Can I be charged with DWI on private property?

Accepted Answer

Yes. Texas DWI law applies to any public place, which courts have interpreted to include parking lots, private roads accessible to the public, and other areas where the public has access. Truly private property — a closed ranch road, a private driveway — may be a defense, but it depends heavily on the specific location and circumstances.

Texas DWI — Frequently Asked Questions

We Hear These Questions Every Day

The Arrest & Your Rights

Your Driver's License

Penalties & Consequences

Fighting the Charges

Repeat Offenses & Special Situations

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