The DWI Stop
Penal Code 49.04 and Transp. Code 724.015 — 0.08, and what a refusal costs
In Texas a person commits driving while intoxicated by being intoxicated while operating a motor vehicle in a public place. Intoxicated means either not having the normal use of mental or physical faculties because of alcohol, a controlled substance, a drug or any other substance, or having an alcohol concentration of 0.08 or more, measured per 210 liters of breath, 100 milliliters of blood or 67 milliliters of urine.
| The first offense, as shown at trial | The class |
|---|---|
| The first offense, as shown at trialIntoxicated while driving in a public place | The classClass B misdemeanor, with a minimum of 72 hours' confinement |
| The first offense, as shown at trialWith an open container of alcohol in the driver's immediate possession | The classClass B misdemeanor, with a minimum of six days' confinement |
| The first offense, as shown at trialWith an analysis showing 0.15 or more | The classClass A misdemeanor |
| The first offense, as shown at trialIn a school crossing zone while its reduced speed limit applies | The classState jail felony |
Before asking for breath or blood, the officer has to say what a refusal and a failed test cost, orally and in writing. A person arrested for driving while intoxicated is deemed to have consented to breath or blood specimens. Before asking, the officer tells the person that a refusal may be used in a later prosecution, that a refusal suspends the license for not less than 180 days whether or not there is a prosecution, and that the officer may apply for a warrant. A person 21 or older who submits and shows a concentration at the Penal Code level has the license suspended for not less than 90 days; a person under 21 with any detectable alcohol, for not less than 60 days.
The suspension for a refusal is 180 days, or two years where the driving record shows one or more alcohol or drug related enforcement contacts in the 10 years before the arrest, and it takes effect on the 40th day after the person receives notice of it. The person has a right to a hearing if the department receives a written demand or request, at its headquarters in Austin, no later than the 15th day after the person receives the notice.
A specimen may not be taken from a person who refuses, except where the code requires one: a blood specimen after a collision the officer believes caused a death or serious bodily injury, and breath or blood where another person was hurt and taken to a hospital, where the arrest is for one of the two offenses the section names, or where the person has the prior convictions it lists. Even then the officer may not require it without a warrant, or probable cause to believe exigent circumstances exist.
A person who gives a specimen may, on request and within a reasonable time of no more than two hours after the arrest, have a physician, qualified technician, chemist or registered nurse of their choosing take an additional blood specimen; officers are not required to transport anyone for it. Repeat offenses, which carry heavier ranges under another section of the chapter, are not set out here.
Sources for this section (8)
- Penal Code 49.04 — Driving while intoxicated
- Transp. Code 724.015 — What the officer tells the person before requesting a specimen
- Transp. Code 724.035 — Suspension or denial of license after a refusal
- Penal Code 49.01 — Definitions for intoxication offenses, including intoxicated
- Transp. Code 724.011 — Consent to taking of specimen
- Transp. Code 724.013 — No specimen if the person refuses, and the exceptions
- Transp. Code 724.012 — Taking of specimen
- Transp. Code 724.019 — Additional analysis by request
Legal information, not legal advice. Verified as of September 2026. Applying it to a particular situation is the work of a licensed Texas attorney.