It is a very common misnomer that people interchange the acronyms DUI and DWI as though they mean the same thing. Indeed, it is confusing considering each state seems to call it something different. However, they are two totally different animals in Texas.
DUI and DWI are not synonyms in the Lone Star State. If you get a DWI in Texas, then you are suspected of drunk driving. If you get a DUI in Texas, you are under the age of 21 and have a detectable amount of alcohol in your system. In this blog we will answer the question— what exactly is a DUI? And, perhaps most importantly, we’ll discuss how our firm can defend someone facing DUI charges.
What Are the Penalties for a DUI?
A DUI, or Driving Under the Influence by a Minor, is a class C misdemeanor, punishable by fine only. While there are potential driver’s license consequences, the offense carries no jail time as part of the punishment for a first offense.
Defining a DUI Offense
This offense is in the Texas Alcoholic Beverage Code section 106.041, and states that: “a minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor’s system.”
If we break down the language of the statute, there are 5 separate elements the State must prove:
- a minor,
- operating
- a motor vehicle, or watercraft,
- in a public place, with
- any detectable amount of alcohol in their system.
The fifth element is usually the most disputed in these cases. Sometimes the evidence solely consists of the officer smelling alcohol on the driver’s breath. They might claim, “I detected a strong odor of alcohol on the minor’s person.” This is the most common phrase we see in these cases. However, this is a very subjective observation that cannot be independently corroborated.
You cannot tell what someone had to drink by smelling their breath. You cannot tell when someone drank something by smelling their breath, and you most certainly cannot tell how much someone drank by smelling their breath.
How does an officer know if the odor detected is alcohol or something easily confused with alcohol? If alcohol is spilled on a person’s clothes, does that odor interfere with what the officer thinks is their breath?
In many cases, officers will try to avoid this subjectivity by using what is known as a Portable Alcohol Sensor (PAS) or aka, a PBT (portable breath test). These devices are notoriously unreliable and have very limited, if any, scientific reliability. In Texas, the results are not admissible in any court because the science fails to reach the required threshold of reliability. However, some courts will allow the State to simply state the PBT showed the presence of alcohol. That evidence alone would satisfy the 5th element for a “detectable amount.” When this is the case, we argue that there is a lack of scientific reliability and go through the factors of such, as well as any potential environmental factors known from each specific case. For example, let’s say a trooper bangs his PBT on the hood of his car to get the thing to turn on/work in cold weather. Would you trust the results of that device beyond a reasonable doubt?
Potential DUI Defenses
The other elements are generally not in dispute in DUI cases, but they certainly can be. To challenge one of the other elements, we may look at the definitions given to each by the legislature.
“Minor” is distinguished by the code from the work “child.” For our purposes, “minor” is anyone under the age of 21. Obviously, if you’re 21 or older, you cannot be charged with a DUI, and it is an affirmative defense that you are of legal alcohol consumption age to a DUI.
“Operating” is also an important word in DUI and DWI cases alike. If you are sitting in the driver seat of a vehicle, is that enough to satisfy the element of “operating”? No. There is no definition of “operating” in the penal code. Generally, the case law holds that there must be evidence that a person took affirmative, overt action to control the vehicle. There is a lot of room for creative lawyering and argument over this element when it’s a legitimate issue.
A “motor vehicle” is defined by section 32.34(a) of the penal code as “a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.” Some DUI charges occur with drivers on golf carts, ATVs, scooters, and electric bikes. Those devices should not be defined as motor vehicles because they can’t be used on the highway.
Another common question we receive is whether you can get a DWI or DUI on a horse. The answer is NO, you cannot get a DWI or DUI on a horse in Texas. Horses are not motor vehicles either.
Finally, “public place” means anywhere the general public has substantial access. For example, you can get a DUI in your driveway or your apartment parking lot, but not on your ranch.
For more information on what to do if you receive a DUI, please don’t hesitate to contact The Law Office of Will Mitchell. Attorney Mitchell is experienced, aggressive, and happy to help.