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Is DWI a Felony in Texas?

Ben Michael

DWIs are generally charged as misdemeanors, but there are some circumstances where a DWI is charged as a felony in Texas. These can include multiple or repeated drunk driving offenses, a DWI resulting in serious injury or death, and a DWI with a child passenger under the age of 15.

In this post, we cover Texas DWI offenses and their consequences in depth, including the circumstances that can result in felony charges. 

What Is DWI?

Under the Texas Penal Code, it is an offense to be “…intoxicated while operating a vehicle in a public place.” 

But what exactly constitutes “intoxicated?” Having a small amount of alcohol on your breath alone, for example, is not enough to charge you with a DWI. Here’s what the law defines as intoxicated:

(A)  not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B)  having an alcohol concentration of 0.08 or more.

Texas Penal Code 49.01

According to the above, you can still be charged with DWI (if the arresting officer believes you are intoxicated) for taking over-the-counter medication or any other substance that impairs your ability to drive—a DWI in Texas doesn’t have to be alcohol-related.

To justify a traffic stop, a law enforcement officer must first have reasonable suspicion that you are engaged or are about to engage in illegal activity—for example, they witness your vehicle swerving, running a red light, or other erratic driving. 

During a traffic stop, the officer will decide whether you appear impaired based on your behavior, speech, and, sometimes, your ability to conduct field sobriety tests. They can arrest you based on this alone, even if your BAC registers below 0.08.

On the other hand, even if you appear entirely in control and sober, if your BAC registers above 0.08, you will be arrested and charged with DWI.

When Is a DWI a Felony in Texas?

Although most DWIs in Texas are treated as misdemeanors, certain circumstances can affect the severity of your charges. For example, registering a BAC of 0.15 or higher on a breathalyzer or blood test will result in a Class A misdemeanor, even if it’s your first DWI offense. 

In some very serious circumstances, a DWI can be charged as a felony in Texas:

  • Third and Subsequent DWI
  • DWI with a Child Passenger
  • Intoxication Assault
  • Intoxication Manslaughter

Let’s take a closer look at each one.

Third and Subsequent DWI

Providing there are no aggravating factors, first and second DWIs in Texas are treated as misdemeanors.

If you have previously been convicted of Intoxication Manslaughter, even if it is the only DWI offense on your record, a second DWI charge will be elevated to a third-degree felony. 

According to Texas Penal code § 49.09, if it is shown during your trial that you have two or more previous DWI-related offenses, even if there were no aggravating factors, and even if they took place outside the state of Texas, your charges will be enhanced to a felony of the third degree.

DWI With a Child Passenger

If you are found to be Driving While Intoxicated with a child passenger under the age of fifteen in your vehicle, you will be charged with a state jail felony under Texas Penal Code § 49.045. State jail felonies in Texas are punishable by a minimum jail sentence of 180 days, a fine of up to $10,000, and license suspension.

Intoxication Assault

If your DWI offense results in an accident that causes serious bodily injury to someone, you will be facing a third-degree felony. ‘Serious bodily injury,’ according to Texas Penal Code § 49.07, includes an injury that creates a substantial risk of death or causes serious permanent disfigurement or impairment.

Intoxication Manslaughter

Intoxication Manslaughter refers to a DWI crime that results in someone’s death. Intoxication Manslaughter is a second-degree felony that carries severe punishments to match the severity of the offense. However, if the victim was a firefighter, emergency medical services personnel, or peace officer on duty, Texas law states that the charge is enhanced to a first-degree felony. 

Is Drunk Driving a Felony or Misdemeanor in Texas?

Criminal charges in Texas are classified as either misdemeanors or felonies. Misdemeanors are categorized into classes, depending on the severity of the crime, and range from Class C misdemeanors—the least severe charge—to Class A misdemeanors.

A state jail felony is the next level up, with consequences increasing significantly. Beyond this, felonies range from third-degree to first-degree, with a capital felony being the most severe type of crime in Texas.

DWIs in Texas range from Class B misdemeanor to third-degree felony, depending on the circumstances of the case. Crucially, punishments and consequences are often significantly harsher for repeat offenders.

If you have been charged with a first-time DWI, an experienced DWI attorney can fight for the best outcome for you, which could include deferred adjudication or even dismissal.

Below, we break down the punishments and consequences of each DWI. The fines stated in the below sections do not include administrative charges and penalties, which range from fines to driver’s license suspension. The total cost of a DWI amounts to more than fines and jail time.

First DWI Case

A first-time DWI is categorized as a Class B misdemeanor. It may be the least serious of the DWI charges, but make no mistake: a conviction for a Class B misdemeanor is a permanent criminal record, and its negative consequences will remain long after the price in punishment has been paid.

For a Class B misdemeanor in Texas, you can expect the following punishments:

  • A fine of up to $2,000
  • Up to 180 days in jail

Second DWI Case

If you have a previous DWI-related conviction on your record, the consequences become more severe with each subsequent offense. Second-time DWIs are categorized as Class A misdemeanors in Texas.

A Class A misdemeanor is only one degree away from being a felony. These crimes are serious, and the punishments increase in severity to match:

  • A fine of up to $4,000
  • Up to 1 year in jail

Third DWI Case

Third, fourth, and subsequent DWIs are charged as third-degree felonies, and the punishments, including jail time and fines, are likely to increase with each subsequent offense.

If your DWI results in serious bodily harm to another, you could face a third-degree felony, even if it is your first or second offense. Punishments include:

  • 2–10 years in prison
  • A fine of up to $10,000

Driving With an Open Container

If the arresting officer finds you with an open container, this offense is separate from Driving While Intoxicated. Under Texas Penal Code § 49.031, it is an offense to possess an open container of alcohol in the passenger area of a vehicle while the vehicle is on a public highway. You can still be charged with having an open container in your vehicle even if your car is parked and you’re not charged with DWI.

Each count of open container counts as a separate offense, which Texas law categorizes as a Class C misdemeanor.

If you face a DWI, an open container could enhance your charges, resulting in longer jail time. On its own, a Class C misdemeanor is punishable by a $500 fine. 

What Might Increase the Severity of the DWI Charge in Texas?

The severity of DWI charges will increase to match the seriousness of the crime. The following circumstances will all count against you:

  • Repeat offenses: Consequences will increase in severity with each subsequent DWI-related crime.
  • Causing serious bodily injury: If your crime results in the injury of another, you can expect your punishment to be more severe, especially if it results in serious bodily injury. The charge increases in severity if the person harmed is an emergency worker or peace officer.
  • Causing death: If your crime results in the death of another, you will be charged with a second-degree felony.
  • Carrying a child passenger: Having a passenger under the age of 15 during your DWI will result in more severe charges, even if it’s your first offense.
  • BAC of 0.15 or more: If the prosecution can prove, using breathalyzer, blood, or urine test results, that you had a BAC of 0.15 or higher, this will increase the severity of the charge. A regular DWI with no other aggravating factors will be considered a Class A misdemeanor.

Lookback Period for DWI in Texas

In some states, the lookback period for a DWI is limited. There is no lookback period in Texas. This means that a conviction from 20 or even 30 years ago can still be counted as a previous offense, thereby enhancing the charges of any subsequent DWIs.

DWIs in Texas remain on your driving record, just as a criminal conviction remains on your record permanently. 

Probation for DWI Felony in Texas

Probation—also known as community supervision in Texas—gives a person the chance to serve some, or all, of their sentence in the community provided they follow rigid rules and regulations that often include meetings with a supervision officer and various classes aimed at rehabilitation.

Probation may be an option for some people charged with a DWI felony, but it depends on the circumstances of each case. To be eligible, a person must not have any previous felony convictions. Additionally, probation is only available if the criminal sentence is 

It’s unlikely that a person charged with a third or subsequent DWI will be offered probation. On the other hand, if this is your first DWI, then this increases the likelihood of probation.

DWIs that lead to serious bodily injury or manslaughter are unlikely to be eligible for probation as these are considered very serious crimes. Additionally, probation is not available for convictions with sentences longer than ten years.

Consequences of Three DWIs In Texas

If you have two previous DWI convictions on your record, regardless of when the crimes happened, and even if they occurred in a different state, a third or subsequent DWI will be charged as a felony of the third degree.

The criminal consequences of a third-degree felony include 2–10 years of jail time and a fine of up to $10,000.

In addition to criminal punishments, a felony conviction will remain on your record permanently, negatively impacting your ability to find employment, gain professional certification or licensing, get loans, and even find accommodation.

If you, or someone you love, have been charged with a DWI, be it your first or your third, it is imperative that you contact a professional, experienced lawyer as soon as possible. Call Michael & Associates today for a free case review.

Ben Michael

Ben has vast experience in defending criminal cases ranging from DWIs to assault, drug possession, and many more. He has countless criminal charges dismissed and pled down. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.

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