Defenses to Underage Drinking and Driving in Texas

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I would highly recommend Hoeller McLaughlin. They helped my husband on a probation violation case and did an excellent job. Dustin Trammel was our attorney and he communicated with us and was supportive and helpful throughout the process. Very good legal service and would recommend this firm.

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I can not say enough about how grateful I am that Dustin Trammel was my attorney! Having no experience with court proceedings, Dustin explained everything and stayed in touch with me the entire time. I couldn’t have asked for a better attorney! Very highly recommend!!

Brenna Mills
June 9, 2016

For people under the age of twenty-one years, there are valid defenses for driving while intoxicated.  However, “I only had a couple of beers”, “I only blew a .03 on the breath test”, “my dad always has a couple of beers and then goes driving’, or the famous “everybody does it” excuses will not help you.

Texas has a zero tolerance for alcohol consumption by minors (people under twenty-one years of age) when they are driving.  Suppose that you had just one beer, you are driving home at 11:30 pm and encounter a traffic check point.  You are not worried, but the police officer smells a bit of alcohol or notices that you are acting a bit paranoid.  He may ask if you have been drinking. Next thing you are informed that you must take a breath test or a blood test.  The test indicates you have a detectable amount of alcohol in your system.

Because of the one beer, you can be charged with a Class C misdemeanor.  If convicted, the penalties include suspension of driver’s license, fines, community, requirement to attend classes concerning alcohol abuse, and jail time is a possibility.  If the test indicates your blood alcohol level is .08 or greater, the penalties provided for driving while intoxicated will apply.

Depending on what the breath or blood test indicated, the police officer can issue a citation or take you into custody.  Regardless, you will need an experienced Fort Worth DWI attorney to protect your rights and best interests.  Do not think the problem will go away just because the police officer issued a citation and sent you on your way.

Your driving privileges are in immediate jeopardy.   In Texas your driver’s license will be suspended in 40 days unless you request a hearing.  This hearing is not in criminal court, but in an administrative court.  From the date of the citation or arrest, you have 15 days to give notice to request a hearing. If an application for a hearing is not made within 15 days, your license is suspended automatically.

A person charged with driving underage with a detectable amount of alcohol in his system also must go to criminal court. Here is some good news.  If the person charged is not a repeat offender, deferred prosecution may be available. Deferred prosecution is an agreement between the district attorney and the defendant that charges will be dropped if particular conditions are met. The typical conditions include remaining on good behavior, attending alcohol education classes, performing community service, and paying a fine.  Each case may have different requirements.  When the conditions are met, the charges are dropped.

There are some issues with deferred prosecution. This does not restore your driver’s license if it was suspended by an administrative court.  Also, if a person is subsequently convicted of another alcohol offense, the charges from the deferred prosecution count in determining the penalties for subsequent offenses.

Moreover, the charges and notice of deferred prosecution may appear on your record. This could cost you a future job, scholarship, or other goal.  Again, help is available. Under certain circumstances, the record of your deferred prosecution can be expunged.  In an expungement, the notice of the deferred prosecution is deleted or erased from your record. Talk with an attorney about this process.  The attorney can tell you under what conditions an expungement will be available to you.

A common misconception is that if a parent is with the minor while driving, then the minor cannot be issued a citation for driving with a detectable amount of alcohol in his system.  This is not true. In Texas it is defense to a charge of consuming alcohol by a minor if the minor is in direct supervision of a parent or guardian, but no one can give a minor permission to drink and drive.

Valid defenses exist for minors who are charged with driving while impaired or having a detectable amount of alcohol in their system.  If the police officer made a traffic stop, the officer must have a valid reason to make the stop.  Moreover, the prohibitions against drinking and driving apply to driving in a “public place.”  What constitutes a public place may not be clear.  Some diabetics will test positive for alcohol when they have had nothing to drink. Talk with an attorney about your particular situation.

If you are reading this article for general information and have no charges pending, good. There is one big take away point. Do not consume alcohol and drive.

If charges are pending, there are seven take away points:

  1. Do not ignore a citation for underage drinking and driving. The police officer may issue a citation and not take you into custody. In 40 days your license will be suspended unless you apply for a hearing before an administrative court.


  1. Do not agree to a deferred prosecution without consulting an attorney. A deferred prosecution is better than a conviction, but serious drawbacks exist.


  1. The law prohibits anyone under the age of twenty-one from driving if the blood alcohol level is above.00.


  1. If you have a deferred prosecution, an expungemnt of your record may be possible.


  1. If your blood alcohol level test is .08 or higher, much stiffer penalties apply.


  1. Drinking and driving carries penalties beyond what the law imposes. Even the presence of a deferred prosecution may cause a potential employer not to hire you. Insurance rates also will increase.


  1. There are defenses that make it possible to win.  Do not agree to anything until an attorney has reviewed your case.


Bryan Hoeller, Fort Worth DWI attorney, can be reached at 877-208-3382.

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