Drunk driving refers to the act of operating or driving a motor vehicle while intoxicated due to alcohol or drugs. The degree of intoxication depends on which mental and motor skills are impaired. In the United States, the drinking and driving laws are very clear.

It is illegal to drive a motor vehicle while impaired or with blood alcohol concentration (BAC) of 0.08% or greater. The National Highway Traffic Safety Administration or NHTSA defines alcohol-related fatal collisions as the following. If the driver, a passenger, or non-motorist, such as a pedestrian or pedal cyclist, had a blood alcohol content (BAC) of 0.01% or greater.

Impairment starts with the first drink. A person’s ability to handle alcohol is influenced by a lot of factors such as the person’s gender, body weight, the number of drinks ​consumed and the amount of food ​eaten before drinking. Usually, around two or three beers in an hour are enough to make some people legally intoxicated. 

Federal Drinking ​And Driving Laws

Under the drinking & driving federal law, the legal limit for commercial drivers is pegged at 0.04%. Therefore, the Federal Motor Carrier Safety Administration or FMCSA prohibits and will hold responsible commercial drivers with an alcohol concentration of 0.04 or greater.

If a commercial driver has an alcohol concentration of 0.02 or greater but less than 0.04, then he or she must be removed from duty for 24 hours.

Drinking & Driving State Laws

Because the states are given freedom to legislate on ​drinking ​and driving laws, state laws across the country have some differences and similarities.

​State Law Differences


First difference is on the definition and scope of the offense itself. Some states make it illegal to drive a motor vehicle while under the influence or driving while intoxicated. Others specifically indicate that it is illegal to operate a motor vehicle in any way.

Some states look at the "operation and control" of a vehicle of the intoxicated driver, while others require actual "driving" for it be an offense.

According to jurisprudence, "The distinction between these terms is material, for it is generally held that the word 'drive,' as used in statutes of this kind, usually denotes movement of the vehicle in some direction. The word 'operate' has a broader meaning so as to include not only the motion of the vehicle, but also acts which engage the machinery of the vehicle that, alone or in sequence, will set in motion the motive power of the vehicle." 

The second difference is on the level of the acceptable blood alcohol content or the BAC. The threshold point for an independent criminal offense is known as the "legal limit", which is usually 0.08%.

Under the law, it is a permissive presumption of guilt when the person's BAC is 0.08% or greater. However, some states penalize even those with a BAC lower than the legal limit.

This offense is sometimes referred to as "driving while ability impaired" which applies individuals with a 0.05% or above but less than the 0.08%.

​State Law Similarities


Every state has a "catch-all" provision which covers circumstances where the person has a BAC below 0.08% but the person still appears impaired due to the influence of drugs and/or alcohol.

With the recent legalization of marijuana in some states, these catch-all provisions cover those prosecutions pursuing those charged with driving under the influence of drugs or a combination of drugs and alcohol.

Moreover, all states in the country have implied consent drinking and driving laws which stipulates that licensed drivers have given their consent to a breathalyzer test or other similar tests used to determine blood alcohol concentration. 

As held by the Federal Supreme Court in 2016, breath tests and blood tests both constitute a search under the Fourth Amendment. Thus, breath tests are constitutional without a search warrant. However, tests involving piercing the skin is not because it is more intrusive and that there are other means that can attain the same goal.

​Texas Law

Under Texas drinking and driving laws, a DWI is an impairment from not just alcohol, but also drugs.

At a DWI checkpoint, the driver must be ready with his driver’s license, proof of insurance, and vehicle registration. Refusal to be cooperative at the checkpoint and further refusal to take a breath test will be a ground for automatic suspension of the driver’s license for 180 days. In addition, Texas law mandates imprisonment for DWI offenders, regardless of the prior offense.

​Texas Drinking & Driving Penalties


For first time offenders, a fine of at most $2,000 is imposed together with jail time ranging from three days up to 180 days.In addition, the driver will have to surrender his license for a period of one year. If the offender cannot give up his license, then he or she has to pay an annual fee of ​up to $2,000 for a period of three years in order to retain ​possession and use ​their license.

For second offenders, the fine is up to $4,000 and the jail time ​can be anywhere between a month to a year. The offender’s loss of his license will be imposed for up to two years but if he cannot afford to lose his license, he has to pay an annual fee of ​up to $2,000 for three years.

For third offenders, a fine of a whooping $10,000 is imposed coupled with jail time for two to ten years. The offender will not be able to use ​their license for two years​. ​They have the option to pay an annual fee of ​up to $2,000 for three years.

Note that after two or more DWI convictions within five years, a person must install a special ignition device or IID.  ​This prevents the vehicle from being operated if the driver has a BAC higher than a specified limit.

Tougher Penalties With A Child Passenger

Child Passenger

​Texas drinking ​and driving laws are heavier If the offender is charged with a DWI and ​had a child passenger at the time of arrest. A passenger is considered a child if they are under the age of 15. ​Offenders will be fined ​up to $10,000, plus 180-day driver's license suspension and up to two years in jail time.

DWInformer.com is your source for all the facts surrounding the topic of DWI. Here you can educate yourself on the laws in your area and what your options are. We do not recommend or condone drinking and driving. Knowing your rights is the first step to recovery.

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