DUI vs DWI in Texas | Charges, Penalties & Expungement

DUI vs DWI in Texas — The Core Difference

Texas DUI and DWI are two separate offenses under two different statutes. DUI — Driving Under the Influence — applies only to drivers under 21 with any detectable alcohol, charged as a Class C misdemeanor under Texas Alcoholic Beverage Code §106.041 with a $500 maximum fine, a 60-day license suspension, and no jail time. DWI — Driving While Intoxicated — applies to any driver with BAC 0.08 or above or who is impaired, charged as a Class B misdemeanor or higher under Texas Penal Code §49.04 with 72 hours to 180 days in jail, up to $2,000 in fines, DPS surcharges, and a permanent record with no expungement. The difference determines the court, the penalties, and the record consequence for life.

The most important practical consequence of the DUI-versus-DWI distinction is the record outcome. A DUI can typically be expunged two years after sentence completion under Texas Code of Criminal Procedure Chapter 55. A DWI conviction cannot be expunged, cannot be sealed through non-disclosure in most cases, and appears on every background check for life. For a driver under 21 whose BAC is close to the 0.08 threshold, the defense strategy often focuses on attacking the BAC evidence to prevent escalation from DUI to DWI — preserving the expungement pathway. An experienced Austin DWI lawyer treats that threshold as the critical defense line.

This page walks through the legal framework in detail: what constitutes a DUI under TABC §106.041, what constitutes a DWI under Penal Code §49.04, the penalty comparison, the record consequences, and the strategic defense differences. For the full Texas DWI laws breakdown with every charge level, see that page. For the first-time DWI defense strategy, see the first-offense page. Call 512-599-9999 with questions specific to your case.

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What is the difference between DUI and DWI in Texas?

In Texas, DUI applies only to drivers under 21 who have any detectable alcohol in their system and is a Class C misdemeanor under Texas Alcoholic Beverage Code §106.041. DWI applies to any driver with a blood alcohol concentration of 0.08 or above or whose mental or physical faculties are impaired and is a Class B misdemeanor or higher under Texas Penal Code §49.04. DWI carries 72 hours to 180 days of jail exposure, up to $2,000 in fines, DPS surcharges of up to $6,000 over three years, and a permanent record. DUI carries a $500 maximum fine and no jail time. DUI can be expunged; DWI cannot.

The statutory separation matters because it determines which prosecutor handles the case, which court hears it, and what defense strategy applies. DUI cases are prosecuted in the Travis County Justice of the Peace courts by county attorney staff; DWI cases go to the Travis County Courts at Law (misdemeanor) or District Courts (felony) and are handled by the specialized DWI divisions of the Travis County Attorney's Office and the Travis County District Attorney's office. Allison Tisdale prosecuted DWI cases in the adult courts as a former Travis County DWI prosecutor — the procedural differences are not theoretical.

There is one critical transition point: a driver under 21 whose BAC measures 0.08 or above is charged with DWI, not DUI, and faces full adult consequences. That's why the BAC evidence challenge is often the central defense issue in under-21 cases near the threshold. The DUI defense page covers the student-case analysis in detail; the first-time DWI defense page covers the adult charge pathway.

DUI vs DWI Texas Comparison Table

The fastest side-by-side view: DUI is an underage-only, fine-only Class C misdemeanor under the Texas Alcoholic Beverage Code with an available expungement path. DWI is a criminal offense under the Texas Penal Code that applies to every driver, carries jail exposure, triggers DPS surcharges, and produces a permanent conviction record with no deferred adjudication available at any charge level.

Factor	DUI (Texas)	DWI (Texas)
Who it applies to	Drivers under 21 only	Any driver (any age)
Alcohol threshold	Any detectable alcohol	BAC 0.08+ or impairment
Governing statute	TABC §106.041	Texas Penal Code §49.04
First-offense level	Class C misdemeanor	Class B misdemeanor
Maximum fine (first)	$500	$2,000 ($4,000 if BAC 0.15+)
Jail exposure (first)	None	72 hours – 180 days
License suspension	Up to 60 days	90 days – 1 year
DPS surcharges	None	$1,000–$2,000/yr for 3 years
Prosecuting court	Travis County JP Court	Travis County Courts at Law
Deferred adjudication	Available	Prohibited
Expungement eligibility	Eligible (Chapter 55)	Not eligible after conviction

The table collapses the most consequential facts into one view. For the full Penal Code §49.04 analysis of every DWI charge level — first offense, BAC 0.15+, second offense, third-offense felony, DWI with child passenger, and intoxication assault — see our Texas DWI laws page. For the downstream record consequences of a DWI conviction — surcharges, CDL impact, licensing, and insurance — see the DWI conviction consequences page.

What is a DWI in Texas?

A DWI — Driving While Intoxicated — is a criminal charge under Texas Penal Code §49.04 that applies to any driver operating a motor vehicle in a public place while intoxicated. Texas defines intoxication two ways under §49.01: (1) a blood alcohol concentration of 0.08 or above — the per se standard — or (2) not having the normal use of mental or physical faculties by reason of alcohol or drugs. A first-offense DWI is a Class B misdemeanor carrying 72 hours to 180 days in jail and a fine up to $2,000. First-offense DWI with BAC 0.15+ is a Class A misdemeanor with up to one year of jail and a $4,000 fine.

The two-definition structure matters because it lets the prosecution charge DWI with or without a chemical test result. If the Intoxilyzer 9000 or blood draw returned 0.08 or above, the per se standard is met and the prosecution need not prove impairment. If no chemical test exists or the result was below 0.08, the prosecution can still charge and convict on the impairment theory using the officer's observations, field sobriety test results, and dashcam footage. Both theories are attackable — the BAC evidence defense page covers the per se challenges in depth.

DWI enhancement under Penal Code §49.09 has no lookback period. A first-offense conviction today permanently enhances every future DWI charge for life. A second DWI is always a Class A with 30-day mandatory minimum. A third is always a third-degree felony with 2 to 10 years in TDCJ. DWI with a child passenger under §49.045 is a state jail felony regardless of prior history. Full first-offense procedural defense is on our first-time DWI defense page.

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Which is worse, DUI or DWI in Texas?

DWI is significantly worse than DUI in Texas. A DUI is a Class C misdemeanor with a $500 maximum fine and no jail time. A DWI is at minimum a Class B misdemeanor with 72 hours to 180 days of jail exposure, up to $2,000 in fines, DPS surcharges totaling up to $6,000 over three years, and a permanent criminal record that cannot be expunged after conviction. A DWI conviction also permanently enhances every future DWI charge for life under Penal Code §49.09, with no Texas lookback period. The DUI charge is serious; the DWI charge is life-altering.

The record consequence is the single sharpest divergence. A DUI can be expunged two years after sentence completion, legally removing the charge from public records. A DWI conviction cannot be expunged at any time and cannot be sealed through non-disclosure in most cases. Every employment, housing, and licensing background check for the rest of the convicted person's life returns the DWI. For CDL holders, DWI adds a one-year mandatory disqualification on a first offense and a lifetime disqualification on a second. Full downstream breakdown is on our DWI conviction consequences page, and the broader Austin criminal defense lawyer guide covers the evidence preservation and constitutional review that apply across every charge type.

The severity difference is the reason the defense strategy changes entirely between DUI and DWI cases. DUI defense often involves harm-reduction plea negotiation with the expungement pathway in mind. DWI defense must be built for dismissal or acquittal from intake, because Texas does not allow deferred adjudication for DWI. An Austin DWI lawyer who doesn't understand this distinction is working from the wrong framework.

Can a minor be charged with DWI in Texas?

Yes. A driver under 21 with a blood alcohol concentration of 0.08 or above, or whose mental or physical faculties are impaired, faces a full adult DWI charge under Texas Penal Code §49.04 — not a DUI under TABC §106.041. The minor faces the same Class B misdemeanor exposure as any adult: 72 hours to 180 days of jail, a fine up to $2,000, a permanent record with no expungement, DPS surcharges of up to $6,000 over three years, and lifetime enhancement of every future DWI charge. The Travis County Attorney's Office prosecutes these cases in the adult courts, not the juvenile system (for defendants 17 and older).

This catches many families and UT Austin students by surprise. The assumption is that any alcohol-related driving charge against a minor will fall under the zero tolerance DUI statute. In practice, if the BAC result is at or above 0.08, the prosecution files DWI. That means the entire strategic calculation changes — the 15-day ALR deadline applies, deferred adjudication becomes unavailable, and the expungement pathway is lost. The only way to preserve the DUI-level outcome in a near-threshold case is to successfully challenge the BAC evidence so the charge is reduced to DUI rather than prosecuted as DWI.

For the full under-21 defense strategy including UT Austin, ACC, and St. Edward's student cases, see our DUI defense lawyer page. For the adult DWI defense pathway that applies to any minor with BAC 0.08+, see the first-time DWI defense page. Allison Tisdale handled these cases as a former Travis County DWI prosecutor before joining the defense — she knows how the county attorney's office evaluates minor DWI files.

DUI vs DWI in Texas — Frequently Asked Questions

The most-searched questions about how DUI and DWI differ under Texas law.

What is the difference between DUI and DWI in Texas?+

DUI in Texas applies only to drivers under 21 with any detectable alcohol and is a Class C misdemeanor under Alcoholic Beverage Code §106.041 with a $500 maximum fine and no jail time. DWI applies to any driver with BAC 0.08+ or impairment and is a Class B misdemeanor or higher under Penal Code §49.04 with 72 hours to 180 days jail exposure, DPS surcharges, and a permanent record. DUI can be expunged; DWI cannot.

Can you get a DUI in Texas if you are over 21?+

No. DUI under Alcoholic Beverage Code §106.041 applies only to drivers under 21. A driver 21 or older stopped for alcohol-related driving in Texas cannot be charged with DUI — the applicable charge is DWI under Penal Code §49.04, which requires BAC of 0.08 or above or evidence of impairment.

What is a DWI in Texas?+

A DWI is a criminal charge under Texas Penal Code §49.04 for operating a motor vehicle in a public place while intoxicated. Intoxication is defined as BAC of 0.08 or above, or not having normal use of mental or physical faculties by reason of alcohol or drugs. First-offense DWI is a Class B misdemeanor with 72 hours to 180 days in jail and a fine up to $2,000.

What is a DUI in Texas?+

A DUI is a Class C misdemeanor under Texas Alcoholic Beverage Code §106.041 that applies only to drivers under 21 with any detectable alcohol while operating a motor vehicle. Also called the zero tolerance law, it carries a maximum $500 fine, 20 to 40 hours of community service, mandatory alcohol awareness education, and a 60-day license suspension — no jail time.

Which is worse, DUI or DWI in Texas?+

DWI is significantly worse. DUI is a Class C misdemeanor with a $500 maximum fine and no jail time. DWI is at minimum a Class B misdemeanor with 72 hours to 180 days jail exposure, up to $2,000 in fines, DPS surcharges totaling up to $6,000 over three years, and a permanent criminal record that cannot be expunged.

Does a DUI in Texas go on your permanent record?+

A Texas DUI appears on the criminal record initially but is generally eligible for expungement under Code of Criminal Procedure Chapter 55 two years after sentence completion, provided there are no other convictions during that period. Expungement legally removes the charge from public records.

Can a DWI be reduced to a DUI in Texas?+

Generally only if the defendant is under 21 and the BAC evidence is successfully challenged to below 0.08. For adult defendants (21 or older), DUI does not exist as a charge, so reduction to DUI is not available. For under-21 defendants with a contested BAC near the threshold, a DWI-to-DUI reduction preserves the expungement pathway.

What is the BAC limit for DUI vs DWI in Texas?+

For DUI (under 21), any detectable amount of alcohol triggers the charge — no minimum BAC threshold. For DWI (any age), the BAC threshold is 0.08 or above, with an enhanced Class A charge at 0.15 or above. Commercial drivers face a lower 0.04 DWI threshold under federal regulations.

Can a minor be charged with DWI in Texas?+

Yes. A driver under 21 with BAC 0.08 or above, or who is impaired by alcohol or drugs, faces a full adult DWI charge under Penal Code §49.04. The charge is a Class B misdemeanor carrying the same 72-hour-to-180-day jail exposure and permanent record as any adult DWI.

How long does a DWI stay on your record in Texas?+

Permanently. A DWI conviction never falls off the Texas criminal record. There is no automatic sealing, no non-disclosure option after conviction in most cases, and no expungement path. Every future DWI charge is enhanced for life under Penal Code §49.09, with no Texas lookback period.

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DUI vs DWI in Texas — The Legal Difference Explained

DUI vs DWI in Texas — The Core Difference

Dismissals Across All Charge Types

What is the difference between DUI and DWI in Texas?

DUI vs DWI Texas Comparison Table

What is a DWI in Texas?

Which is worse, DUI or DWI in Texas?

Can a minor be charged with DWI in Texas?

DUI vs DWI in Texas — Frequently Asked Questions

Austin DWI Attorney Resources

Austin DWI Lawyer

First-Time DWI Defense

BAC & Breath Test Defense

DWI Conviction Consequences

DUI Defense (Under 21)

Texas DWI Laws

DUI vs. DWI in Texas

Austin Criminal Defense

What Our Clients Say

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