If you are under the age of 21 the DWI laws are more severe. You can be below the legal limit for an adult (a person 21 or over) and be charged with a DUI (driving under the influence). This is a zero tolerance law just for people under the age of 21. This law states that if a minor has “any detectable amount of alcohol in his/her system” while driving a motor vehicle then they have committed DUI.
A DUI is classified as a misdemeanor of class “C.” This means you cannot face jail time or a fine of more than $500.00. (For a first offense, you may face jail time; for subsequent offenses, you may face significant jail time). However, in addition to the fine, probation, community service, and alcohol awareness classes may be imposed. Similarly, in the majority of these cases, the Texas Department of Public Safety will issue a notice of suspension and attempt to suspend the minor’s driver’s license. It’s the same administrative license revocation (ALR) procedure that is used in adult cases.
To summarize, a person under the age of 21 is not permitted to consume alcohol and then operate a motor vehicle. If an officer testified in court that he or she smelled alcohol on a minor’s breath during a traffic stop, the minor will be charged with DUI. This is true even if the officer believes the minor is under the legal limit of.08 and has not lost normal use of his or her mental facilities, but has consumed “some or any” alcohol. If a minor’s case is poorly handled, it can have disastrous long-term consequences for the minor’s criminal record as well as prolonged driver’s license suspensions. As a result, it is critical that these cases be taken seriously.
Alcohol & Minors in Texas
Texas Lawmakers have taken a hard line stance against minors using alcohol. It is known as “Zero Tolerance” with the goal of curbing the use and abuse of alcohol by minors.
What are the penalties for Texas DUI and minors?
In addition to the suspension of your driving privilege, the following penalties apply:
First DUI: Class C Misdemeanor
If you are under 18, the court requires your parents or guardian to be with you at every court appearance, regardless if you have a lawyer or not. The court can compel their presence. If convicted, a minor can be fined and will be required to complete between 20-40 hours of community service related to education or prevention of misuse of alcohol. The minor will also have to attend an alcohol awareness program within 90 days. If the minor is under 18, the court may require the parent or guardian to attend this program with the minor. If the minor fails to complete this course within 90 days, the court may suspend the license for an additional 6 months. For a first offense, the minor may receive deferred adjudication for DUI, although it will be considered a conviction. If this is the only offense the minor receives, he is entitled to have it expunged from his record after his 21st birthday.
Second DUI: Class C Misdemeanor
All penalties are the same with 2 exceptions. First, the number of community service hours is increased to 40-60 hours. Second, and more importantly, a second, or any subsequent conviction may not be expunged from your record, but the minor still may receive deferred adjudication.
Third DUI: Class B Misdemeanor
Deferred adjudication is not available now. If the minor is between 18-20 at the time of the 3rd offense, they face confinement in jail up to 180 days and/or between $500-$2,000 fine in addition to the license suspension.
Minors can be cited under the new Zero Tolerance laws for buying, attempting to buy, possessing, consuming, or driving with any detectable amount of alcohol in their system. Gone are the days when the officer would make you pour your beer out on the ground, scold you, and subsequently let you go home, or have your parents come pick you up. Today, if a minor has any detectable amount of alcohol in their system (odor on their breath is enough) and is stopped while driving, he or she can be ticketed for a DUI, even if not intoxicated!
It is important to understand that the odor of alcohol on your breath is a “detectable” amount. The police do not have to offer a breath test. For arrest purposes it is irrelevant if any of the alcohol is still in the body, as long as the officer can smell it on your breath. This means that having a beer with Dad when you are 20 (which is legal since he is your legal guardian) and then driving to a friend’s house is against the law.
The Zero Tolerance laws and their sanctions are designed to rehabilitate and educate minors as opposed to more punitive measures associated with adults. The following information (Chapter 106 of the Texas Alcohol Beverage Code) should be used as a general introduction to how the law treats minors and alcohol. To fully understand how any of the following provisions might apply to the specific facts of your or your child’s case, you should consult with a licensed attorney in Texas who can answer your questions.
What To Do if Stopped for DWI
Being stopped at night by a police officer after consuming a couple of drinks can be an extremely nerve-racking experience. Stress, pressure, and fear of arrest are some of the intense emotions that run through your body at a time like this, and who knows how many additional thoughts are rushing through your mind. In the midst of all this, the officer expects you to perform 100% perfectly on any sobriety tests given. He or she is not concerned with what is going on in your personal life, what the weather conditions are like, what the traffic conditions are, or how tired you might be. Officers will arrest you if you are not 100% perfect.
We advise everyone that if you, for whatever reason, feel uncomfortable when asked to perform any field sobriety test or chemical test, politely tell the officer you are not going to do any tests until you talk to a lawyer. You are being investigated for a crime. Officers learn that if they ever get investigated for a crime or wrongdoing – they should say and do nothing until they talk to a lawyer. Why should you do anything different?
Further, when officers are trained in standardized field sobriety tests, they are required to perform 100% perfectly to become certified. It is not uncommon for officers to have difficulty the first time they attempt the same tests they are requiring you to perform flawlessly. Even though you only get one chance to be perfect, the officers are given several opportunities to perfect their performance, and they have no fear of going to jail.
Field sobriety tests are voluntary. You do not have to attempt them. If you are uncomfortable attempting these tests or are unsure about what to do, politely tell the officer you are not going to perform any tests until you talk to a lawyer.
There are several different ways you can accomplish this. The following suggestions are some acceptable approaches when speaking to the officer:
- “Officer, before I decide to take your tests, I have to speak with a lawyer.”
- “Officer, I am not going to do any tests until I talk to a lawyer.”
- “Officer, I will gladly attempt any test if you allow me to talk to a lawyer first.”
Keep in mind that the officer is going to tell you that you are not entitled to a lawyer at that time, and you must make your own decision. Entitled or not:
- You do not have to attempt the tests, and
- Nothing prohibits the officer from allowing you to call a lawyer.
Remember, if you are stopped after having anything to drink, you are being investigated for a crime that carries serious consequences. KNOW YOUR RIGHTS!
Underage DWI FAQ
Many parents are in favor of tougher laws concerning minors and alcohol until their child is contacted by a police officer. It is at that time they realize just how strict the law is, and in reality, how the law can treat their child unfairly. The following are the most common questions pertaining specifically to minors. Please read these questions & answers, and educate all your children (hopefully in advance of being in trouble) of just how easy it is for them to get in trouble if they decide to drink alcohol before they are 21. If your question is not answered below, please click here to contact me.
Are there different DWI laws for minors?
Yes. Minors between the ages of 18-20 may be charged and prosecuted under the adult DWI laws, but the law is very different for minors. Unlike adult laws that require a driver to be legally intoxicated, a minor need only drive while under the influence of alcohol (DUI) to be convicted. The law states that a minor commits an offense if he drives a car in a public place with any detectable amount of alcohol in the minors system. Simply put, if their breath smells of booze, that is a detectable amount, regardless of the alcohol concentration in their body (i.e. All the alcohol has left your body but your breath stills smells of booze).
Who is a minor for purposes of DWI and DUI?
A minor is any person under 21 years of age. People between the ages of 18-20 are classified as minors, but they may be prosecuted as adults. People 17 years of age and under are not prosecuted under the adult DWI laws.
Can police ask minors to take a breath test without their parents being present?
Yes, the law treats minors and adults the same when it comes to this request. Texas law deems that all people who drive in Texas have consented to the taking of a breath or blood test, regardless of age.
Can a minor accused of DUI refuse to take a breath test?
Yes, but the following consequences may occur:
- suspension of your driving privileges for not less than 120 days if this is your first arrest for an alcohol related driving offense. If you were arrested but do not have a driver license, the state will not issue a driver license to you for 120 days
- 240 day suspension of your driving privilege if you record reflects one or more drug or alcohol related offenses during the 5 year period preceding your arrest.
What if a minor takes a breath test and it shows less than .08?
If a minor has any detectable amount of alcohol in their system, their driving privilege will be suspended for not less than 60 days. It is important to understand that the odor of alcohol on your breath is enough to prove you had a detectible amount of alcohol in your system. Further, any test result can be admissible in a subsequent criminal prosecution for DWI or DUI.
Does a DWI conviction affect a minor’s (anyone under 21) driving privilege?
If convicted and probation is granted, the Judge is required to suspend the person’s driver license for 90 days and require an ignition interlock as a condition of probation. If the Judge orders this, DPS cannot suspend the driver’s license for a 1 year. If convicted and the Judge does not order the 90 days suspension, DPS will automatically suspend the driver’s license for 1 year.
Yes. The law classifies a first offense DUI and other alcohol related driving offenses as delinquent conduct indicating a need for supervision. This means that a juvenile convicted of a first offense DUI can be placed on probation or committed to the Texas Youth Commission for confinement. A minor between 18-20 can be sentenced up to 180 days in jail on the third conviction for DUI or the first conviction for DWI. However, a police officer who charges a minor with DUI is not required to arrest them. They may issue a citation with a court summons.
Contact Us Today
As a DUI/DWI criminal defense attorney in Texas, Joe Cannon has a proven record of winning that we can put to work for you. In addition to our superior litigation skills, we’ve guided many people about the penalties of a conviction and drunk driving with a concealed handgun charges.