In Texas, driving while intoxicated is against the law. You can be arrested if your blood alcohol concentration (BAC) is 0.08% or higher, or if police believe alcohol, drugs, or a combination of both affected your ability to drive safely, even if your BAC is below the legal limit.
Key Takeaways
- You don’t have to blow a BAC of 0.08% to be arrested for DWI in Texas
- Your driver's license can be suspended even if your criminal DWI case is dismissed
- Texas made a few narrow, targeted updates to DWI-related laws in 2025
Related: Ultimate guide to DWI in Texas
2025–2026 Texas DWI Law Updates
| Law | Bill | What it does | Date enacted | Notable |
| School Crossing Zone DWI | SB 826 | Creates a state jail felony enhancement for DWI in a school crossing zone during reduced-speed hours | Sept. 1, 2025 | Applies only during posted crossing times |
| Blood Warrant Execution | SB 1886 | Allows certain blood warrants to be executed in adjacent counties | Sept. 1, 2025 | Expands authority, but only in limited situations |
| Other Criminal Penalties | HB 108 | Increases penalties tied to use of metal or body armor in certain crimes | Sept. 1, 2025 | Not DWI-specific |
What Is a DWI in Texas?
- A BAC of 0.08% or higher, or
- Losing normal mental or physical abilities because of alcohol, drugs, or both
Police don’t need a breath or blood test to make a DWI arrest. The appearance of intoxication or other evidence can be enough.
This means that if a police officer believes you're impaired in any way, you can be arrested and charged with DWI. It's an ambiguous standard, and you could land in jail simply due to the use of a prescription medication or a medical crisis.
Related: What is per se intoxication?
There are a few notable exceptions:
- People who hold commercial driver's licenses: If you drive for a living, the BAC requirement falls to .04%. The stakes are particularly high because if your license is suspended, you lose your source of income.
- Drivers under 21: Zero-tolerance rules apply, so any alcohol consumption at all can result in a DUI charge
Texas DWI Penalties by Offense Level
| Charge | Jail time | Fines | License suspension | Notable |
| First DWI (Class B misdemeanor) | 72 hours to 180 days | Up to $2,000 | Up to 1 year | Probation often available |
| First DWI, BAC ≥ 0.15% (Class A misdemeanor) | Up to 1 year | Up to $4,000 | Up to 1 year | Enhanced charge |
| Second DWI | 30 days to 1 year | Up to $4,000 | Up to 2 years | Ignition interlock often required |
| Third DWI (Felony) | 2 to 10 years | Up to $10,000 | Up to 2 years | Results in a permanent felony record |
Related: What is a felony DWI?
Can You Go to Jail for a DWI in Texas?
It's possible, primarily if you've already had two or more DWI convictions, or your DWI included a serious aggravating factor. However, based on our internal case outcomes and publicly available court data, most first-time DWI cases typically won't result in jail time.
- Your BAC is 0.15% or higher
- There’s an open container in the vehicle
- You have a prior DWI conviction
- A child passenger was in the vehicle
Situations That Increase DWI Penalties
DWI With a Child Passenger (Under 15)
- Are charged as a state jail felony
- Carry between 180 days and 2 years in state jail
- Result in fines of up to $10,000
- Carry a license suspension of at least 180 days
Open Container in the Vehicle
- A first DWI carries a mandatory minimum of 6 days in jail
- Your BAC level doesn’t matter
Will My License Be Suspended After a Texas DWI?
ALR Suspension Periods
- Refusing a test: Up to 180 days
- Failing a test: Up to 1 year
What Happens After a DWI Arrest in Texas?
- Arrest and booking
- A temporary driving permit will be issued
- The arrest triggers a 15-day deadline to request an ALR hearing (separate from criminal hearings)
- Prosecutors will decide whether to file charges
- Court hearings and motions will get underway
- The case will be resolved (through a dismissal, plea deal, or trial)
The first four steps often move quickly, but then the process slows considerably when the case advances to hearings and evidence review.
What Does the State Have to Prove?
- You had control of a vehicle (you DO NOT have to be driving)
- In a public place
- While intoxicated
Evidence Commonly Used in DWI Cases
We routinely review all evidence from your traffic stop, including:
- Police reports and testimony
- Field sobriety tests
- Breath or blood test results
- Dashcam or bodycam footage
- Witness or accident reports
Common DWI Defenses
An experienced Texas DWI lawyer has several defense options. These can include:
- Establishing that a traffic stop was illegal
- There were errors with the breath or blood testing
- Field sobriety tests are unreliable
- There was no actual impairment
- The driver's BAC increased after driving
We routinely challenge breath and blood testing procedures, which are among the most common weak points in Texas DWI cases. We have five DWI scientists on our team who will ensure that your tests were administered and handled properly.
How Texas DWI Penalties Escalate
- BAC ≥ 0.08%: Elevated charges are possible
- BAC ≥ 0.15%: Penalties increase
- Child passenger: Upgraded to a felony charge
- Open container: Mandatory jail time
- Test refusal: Automatic license suspension
Although state statutes set ranges for penalties and jail terms, local judges have broad discretion unless a mandatory minimum applies. This means that the penalties you'll face will depend on where you're arrested. That's why it's critical to have a lawyer who is familiar with that particular county.
Related: Aggravated DWI in Texas
DWI vs. DUI in Texas
DWI and DUI sound the same (and are interchangeable in some states), but they are not the same charge in Texas.
- DWI: Applies to adults and minors whose blood alcohol concentration exceeds .08
- DUI: Applies only to drivers under 21 with any detectable alcohol (under Texas's zero-tolerance law)
Common Myths About DWI Laws in Texas
- You have to be drunk to be arrested: False
- Refusing a test avoids consequences: False
- No conviction means no license suspension: False
- DWI and DUI are interchangeable: False
Frequently Asked Questions
Can you get a DWI below 0.08%?
Is jail mandatory for a first DWI?
Does a DWI stay on your record forever?
Can a Texas DWI be dismissed?
The Bottom Line
Michael & Associates DWI / DUI Defense Services
Michael & Associates' attorneys have handled thousands of DWI cases across Texas and regularly appear in state and county courts.
We currently accept clients in all of Texas's major metropolitan areas, including
- Austin area / Central Texas: Travis, Williamson, Bastrop, Bell, Caldwell, Coryell, Lampasas, Llano, Hays, Milam, Blanco
- Dallas / Fort Worth area, including Collin, Denton, Ellis, Rockwall, and Tarrant counties.
- Houston area: Harris, Galveston, Fort Bend, Montgomery, Waller, Brazoria
- San Antonio area: Atascosa, Bexar, Bandera, Comal, Gillespie, Guadalupe, Kendall, Medina, Wilson
Contact us today to schedule a free case review.
Sources: Michael & Associates research, Texas Penal Code, Texas Code of Criminal Procedure, Texas Legislature, Texas Department of Public Safety
Note: Ben Michael (Texas Bar Card #24088055) is the Managing Partner of Michael & Associates and has spent more than a decade defending Texans charged with DWI and other criminal offenses. This article was originally published on February 10, 2026, and has been reviewed for accuracy by experienced Texas DWI lawyers.
