What are the differences between a DWI and Obstruction of a Highway?

DWI (First Offense)

Formerly not eligible for deferred adjudication. *Update - A recent bill was passed (2019) allowing DWI’s to be eligible for deferred adjudication.

Nondisclosure eligible in some cases if eligibility requirements are met. See our DWI and Nondisclosure page for more information.

Driver License Surcharges apply.  
See our DWI License Surcharges page for more information. *Effective September 1st, 2019 all pre-existing surcharges were forgiven, and any new surcharges after September 1st, 2019 will become additional fines.

Conviction appears on DPS Driver History record. Auto insurance rates will likely increase.

SR-22 insurance may be required.

Additional license suspensions may apply as a term of sentencing.

Failure to complete an approved DWI Education program 180 days after conviction will result in an indefinite driver license suspension until the class is completed. This class can be taken prior to sentencing and will still count toward this requirement.

Mandatory minimum sentence of 72 hours in jail. This does not mean that a defendant will literally serve 3 days in jail. Instead, this means that if convicted of DWI, there will be some form of sentence that is unavoidable: jail, house arrest, weekend jail, probation, etc.

Obstruction of a Highway

May be eligible for deferred adjudication.

Eligible to file a Motion for Nondisclosure. See our DWI and Nondisclosure page for more information.

No additional fines (formerly surcharges).

Conviction does not appear on DPS Driver History record.

No SR-22 insurance.

No additional license suspensions as a term of sentencing.

DWI Education Program will still likely be required as a term of probation. However, failing to complete the approved program will not result in a driver license suspension.

No mandatory minimum jail sentence.

Sentencing Guidelines - DWI vs. Obstruction of a Highway

DWI Penalties

License Penalties - DWI vs. Obstruction of a Highway

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Effective September 1st, 2019 all license surcharges were forgiven. However, a DWI conviction after September 1st, 2019 can result in an additional fine equivalent to the amounts under the former surcharge program.

What is Obstruction of Highway?

Under Section 42.03 of the Texas Penal Code, a person commits the offense of obstruction of highway if, without legal privilege or authority, (s)he intentionally, knowingly or recklessly:

(1)  obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others; or

(2)  disobeys a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer, a fireman, or a person with authority to control the use of the premises:

(A)  to prevent obstruction of highway or any of those areas mentioned in Subdivision (1);  or

(B)  to maintain public safety by dispersing those gathered in dangerous proximity to a fire, riot, or other hazard.

Why Obstruction of Highway instead of a DWI?

Obstruction of a Highway - Intoxication is a common alternative to a conviction of Driving While Intoxicated.  A defense attorney may make a deal with the prosecutor resulting in a plea bargain.  How does it work?  Instead of being convicted of a DWI, a defendant may be able to plead guilty to this "lesser" charge.  The defendant's ability to do this is based on the cooperation of the prosecutor and whether the prosecutor wants to prosecute the DWI charge or instead resolve the case with a plea bargain.  There are a number of reasons why people charged with DWI would like to resolve their case in this manner:

  • First of all, a DWI conviction is very expensive. In addition to court and probation fees (most first-time DWI convictions result in probation), defendants must pay thousands of dollars in fines and DPS surcharges.

  • Deferred adjudication is not a punishment option with a DWI charge, but it is with Obstruction of a Highway. Deferred adjudication basically means that if a defendant completes the terms of his or her probation, the case will be dismissed and a conviction will not appear on their record. *Update - In some circumstances, a DWI may now be eligible for deferred adjudication effective 2019.

  • There is less stigma associated with Obstruction of Highway, as the general public views it as a traffic offense rather than intoxication-related offense.

Can I get my DWI charge changed to Obstruction of Highway?

Unfortunately, getting a DWI charge changed to Obstruction of Highway is not always possible. Obstruction of Highway may be negotiated by a skilled defense attorney if the attorney can find sufficient evidence favorable to the defense that shakes the prosecutor’s confidence in obtaining a guilty verdict at trial. Given the definitions for intoxication in Texas, which allow prosecutors to prove their case by showing an individual has lost their normal use of mental or physical faculties (regardless of their Blood Alcohol Concentration), it is very hard to shake a prosecutor’s confidence in a DWI case. The defense attorney will attempt to:

  • Find mistakes the arresting officers made, particularly in administration of field sobriety tests;

  • Find a strong legal issue with the stop;

  • Find a strong legal issue with the arrest;

  • Identify issues relating to the breath or blood specimen;

  • Find issues relating to the lab that tested the blood specimen; etc.

What factors make it extremely unlikely (although not impossible) to get an Obstruction of Highway offer?

  • Any prior DWI arrest

  • Any prior DWI conviction

  • Criminal history

  • A breath or blood sample significantly over the legal limit, unless the attorney can find a way to keep that evidence out

  • An accident

Communication of information by, in, to or through this Web site and your receipt or use of it (1) is not provided in the course of and does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney.   You should not act upon any such information without first seeking qualified professional counsel on your specific matter. 

Talk to your attorney to determine whether a plea bargain may be an option for your case.