Texas DWI Laws

Classification of DWI Under Texas Law: Texas Penal Code §49.04

Under Texas Law, an offense for Driving While Intoxicated (DWI) can be classified many ways depending on the facts surrounding the arrest for drunk driving and the prior criminal history of the accused. The Classifications of DWI under Texas Law are as follows:

  • DWI, First Offense: Class B Misdemeanor
  • DWI, Second Offense: Class A Misdemeanor
  • DWI, Third Offense (or more): Third Degree Felon
  • Intoxicated Assault: Third Degree Felony
First Offense DWI: Class B Misdemeanor: Texas Penal Code §49.04

A first offense or Driving While Intoxicated is a class B misdemeanor and defined by Texas Penal Code § 49.04. Under Texas Law, the State must prove the following elements beyond a reasonable doubt to convict a person of driving while intoxicated:

  1. The defendant;
  2. On or about a certain date;
  3. Operated a motor vehicle;
  4. In a public place;
  5. In a particular county in the State of Texas;
  6. While Intoxicated.

Definition of “Intoxication” under Texas Law

The most commonly disputed element in a DWI trial is the “while intoxicated” element. The State of Texas has defined “Intoxication” as [Texas penal Code §49.01(2)]:

  1. not having the normal use of physical faculties OR
  2. not having the normal use of mental faculties OR
  3. having an alcohol concentration of 0.08 or more.

Therefore, the State may prove a person is “intoxicated” for the purposes of a DWI conviction in three (3) different ways:

  1. not having the normal use of physical faculties OR
  2. not having the normal use of mental faculties OR
  3. having an alcohol concentration of 0.08 or more.

It is important to note that a jury does not have to reach a unanimous decision on the manner or means of intoxication. Therefore, the jury does not have to agree how a person is intoxicated only that the all agree the defendant is intoxicated by one of the three ways above. BUT, it is important to remember that the State must prove a person is intoxicated at the time of driving. This can sometimes be a problem for the State when a long period of time elapses between the when a person was arrested and when sobriety tests where preformed.

1st Offense DWI: Class B Misdemeanor: Range of Punishment and Consequences

The punishment for a first offense DWI is:

  • A fine not to exceed $2,000.
  • Confinement in the County Jail for a term not less than 72 hours and not more than 180 days. NOTE: Most people convicted of a first DWI offense are granted community supervision (“probation”) instead of serving time in the County Jail. Generally, probation can last anywhere from 12 to 24 months. If you are granted community supervision in your case, the following conditions could apply:
  • Not less that 24 hours of community service nor more than 100 hours.
  • Drug and/or Alcohol evaluation and any conditions associated with that evaluation.
  • Complete a DWI Education course within 180 days for the date of conviction.
  • Attend and complete a M.A.D.D. Victim Impact Panel.
  • Maintain suitable employment, commit no other crimes, and remain at the same residence and employment unless notification is given to the community supervision officer.
  • Report monthly to the supervision office and pay a monthly supervisory fee (usually between $40-$60).
  • Pay all fines and costs in a timely manner.

If you case involves certain “bad facts” then additionally conditions may be imposed as well. “Bad Fact” cases are those which involve either a high level of intoxication, dangerous driving facts, or prior criminal history. In these type of cases, a judge in his or her discretion may impose the following conditions:

  • Deep lung air device: This condition requires you to install and maintain a device on your vehicle. The device requires a breath sample before it will allow your car to start. In addition, these devices may require you to give periodic breath samples while your car is running.
  • Restitution: If you are involved in an accident, the court may require you to pay restitution for damages not covered by insurance.
  • Confinement: Even if you are given community supervision, the court may require you to be confined in the County Jail as a condition of your probation. In some cases, judges will require a defendant to go to jail for 3 to 5 days as a condition prior to being placed on probation.
  • Alcohol Treatment: The court may order a person to attend AA or other counseling programs during probation. This condition is usually ordered if you have an unfavorable drug or alcohol evaluation.
  • No Alcohol: Some courts require a person not to consume any alcohol during the period of community supervision. Courts monitor this condition by requiring a person to submit to random urinalysis.
2nd Offense DWI: Class A Misdemeanor

Under Texas Law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after the conviction are increased or enhanced. NOTE: Texas can use prior conviction that occurred in a different state to enhance a Texas DWI.

The punishment for a second offense DWI is:

  • A fine not to exceed $4,000.
  • Confinement in the County Jail for a term not less that 30 days or more than one (1) year.
  • 80 to 200 hours of community service.
  • A Deep Lung Device is typically required for all DWI second offenders.
  • A possible driver’s license suspension of 180 days to two (2) years.
  • T & C Jail Time: Texas law requires that a person serve some time in jail for a second offense DWI even is he or she is granted community supervision. This is known as “T&C” time or “Terms and Conditions” or probation time. T&C time can be up to 30 days. However, most courts impose five (5) days of T&C time is your prior DWI is less than five (5) years old and three (3) days T&C time if your prior DWI is grater that five (5) years old.
  • NOTE: Condition of Bond: Most courts will require a person who has been charged with a second DWI offense to install a deep lung device on his or her vehicle as a condition of bond. This means that in order to get a bond and be release from jail, a person must install a deep lung device on his or her car and it must remain there while their case is pending or until the judge orders that it can be removed.
Third Offense (or Greater) DWI: Third Degree Felony

The Punishment for a third offense (or greater) DWI is:

  • A fine not to exceed $10,000.
  • Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less that two (2) years nor more that ten (10) years.
  • A Deep Lung Device is generally order as a condition of bond and as a condition of any occupational or provisional licenses that may be awarded after a conviction for Felony DWI.
  • A possible driver’s license suspension of 180 days to two (2) years.
  • SAFP: Substance Abuse Felony Probation. The court may order mandatory rehabilitative treatment for people convicted of felony DWI. This treatment may be imposed as an alternative to serving time in the penitentiary. SAFP is an in-patient, incarceration program ran by the state of Texas. This program requires confinement in a state Facility for alcohol rehabilitation. After completing the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.
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