Is DWI a Felony in Texas?

When it comes to driving while intoxicated (DWI) penalties, Texas law is tough. While first-time offenders may be able to get a lenient sentence, many people arrested for drunken driving are charged with a felony. And as is common with many legal questions, the answer as to whether a DWI will be a felony in Texas is: it depends.

Prior convictions can play a major role in whether or not you are charged with a misdemeanor or a felony. In fact, two different people arrested in exactly the same circumstances could wind up facing drastically different consequences. That is why it's so important to hire an experienced DWI defense attorney like Doug Murphy, who has for the last two decades dedicated his practice in DWI cases and has continued to maintain Board Certification in DWI defense as well as Board Certification in criminal law -- one of only two lawyers with the same distinction in all of Texas.

Felony DWI Frequently Asked Questions

Is DWI a criminal offense in Texas?

Yes. DWI is illegal in Texas pursuant to Texas Penal Code Section 49.04. Depending on the circumstances, it can be either a misdemeanor or a felony. According to the statute, it is illegal for an intoxicated person to operate a motor vehicle in a public place. The Texas Penal Code defines intoxication as:

  1. 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
  2. having an alcohol concentration of 0.08 or more.

This definition gives prosecutors two different avenues to prove you were intoxicated while driving. To prove that you did not have the normal use of your mental or physical faculties, the prosecutor will put on evidence to imply you weren't fully in control of your faculties. That can include testimony that you smelled like alcohol or had an open container in the vehicle.

Your arresting officer will also administer field sobriety tests in order to show that you are intoxicated. These exams are designed to test and record things like reaction time and eye nystagmus. Many of these investigative techniques are inaccurate or speculative. Your attorney may be able to show a judge that tests were not administered properly or that they violated your constitutional rights.

To prove you had an alcohol concentration of 0.08 or more, the prosecutor will admit into evidence results from a breathalyzer and/or blood test. These tests can also be unreliable and produce inaccurate breath and blood readings.

It is important in either scenario to retain legal representation by a Board Certified DWI attorney who is not hesitant to challenge field sobriety, breath, or blood tests before or at trial.

What is the alcohol limit for driving in Texas?

One of the ways the State of Texas can prove that you were driving while intoxicated is by showing that you were operating a motor vehicle while having a blood alcohol concentration (BAC) of .08 or more. The actual amount of alcohol measured will depend on whether the sample you give is breath, blood or urine. According to the Texas Penal Code, alcohol concentration means the number of grams of alcohol per:

  • 210 liters of breath;
  • 100 milliliters of blood; or
  • 67 milliliters of urine.

If after being arrested for DWI your BAC test registers a .08 or more, you will be charged with DWI.

What is the classification of a first-time DWI offense in Texas?

When facing a Texas DWI arrest for the first time, you will likely be charged with a Class B misdemeanor with a minimum term of confinement of 72 hours unless you meet criteria that can upgrade the charge to a higher misdemeanor or even a felony. If, at the time of your arrest, you are found in possession of an open container of alcohol, your minimum term of confinement in county jail will be raised to six days.

Having a high BAC reading can also increase the charges against you. If your BAC was 0.15 or more at the time of your arrest for a first-offense DWI, your charge will be upgraded to a Class A misdemeanor. If you have both a high BAC reading and a prior alcohol-related conviction the penalties could be even higher.

Can a first-time DWI also be a felony in Texas?

Usually not. While a first-time DWI itself is charged as a misdemeanor, there are three circumstances in which your first-time drunken driving arrest could lead to felony charges.

The first possibility is if while driving under the influence you cause someone a non-fatal injury in an accident. If the driver is seriously injured or permanently disfigured as a consequence of your drunk driving, you may be charged with intoxication assault. Intoxication assault is a third-degree felony under Texas law.

The second possibility is if you kill someone as a result of your drunken driving. Known as intoxication manslaughter, you will be charged with a second-degree felony if the accident you caused while driving while intoxicated leads to the death of another person.

Their third possibility is if you drive drunk with a child passenger. Known also as driving under the influence with a child passenger, you will be charged with a state jail felony if a passenger in your vehicle is under the age of 15 years old.

How long does a DWI stay on your record in Texas?

Previous convictions for a DWI matter a great deal. They can be the difference between avoiding jail altogether and being sentenced to prison. In many states, not every DWI conviction is given equal weight. These states employ a “lookback period,” a period of time beyond which any DWI convictions are not considered when law enforcement determines what to charge you with. For example, neighboring Arkansas has a 5-year lookback period. This means that even if you have a dozen DWI convictions on your record but they are all at least five years old, you will be charged with a DWI first-offense.

However, Texas is one of nine states that doesn't have a lookback period. When you are arrested for DWI in Texas, prosecutors will consider every DWI conviction you have had in your lifetime, even if they are decades old. A DWI conviction can negatively affect you forever; hiring the right Houston DWI defense attorney is an important step in protecting your freedom and livelihood.

Fortunately, you may now be eligible for expunction or nondisclosure of your first DWI conviction. It is important to contact DWI defense attorney Doug Murphy to discuss your case and determine if you qualify.

Is a second DWI a felony in Texas?

Usually not. A DWI second offense is charged as a Class A misdemeanor under the Texas Penal Code. It carries a minimum jail term of 30 days and a maximum term of 1 year. It also carries a maximum fine of $4,000 in addition to a variety of costs and fees associated with your case and your driver's license. Like a first offense, a second DWI arrest can lead to felony charges if you seriously injure or kill another person as a result of your drunken driving. You may also face a suspension of your driving privileges for up to two years.

Is a third DWI a felony in Texas?

Yes. If convicted of a third DWI, you will face a state prison sentence for a minimum of two years and a maximum of ten years. You will also be assessed a fine not to exceed $10,000 as well as the costs and fees related to your case and your driving privileges. The judge may require up to 600 hours of community service, an ignition interlock device, and revocation of your driver's license. You may also be required to enroll in substance abuse treatment or attend a DWI Impact Panel. A DWI Impact Panel is a forum where the victims of drunken driving will tell you about who they have lost.

A felony conviction will cost you more than just the punishment dished out by the judge, however. Many employers run background checks on potential hires, and a felony conviction could cost you a job opportunity. A conviction may also affect your housing options. Many landlords also require background checks. If you have a felony conviction your housing options could be seriously curtailed. You will lose other rights that you may have become accustomed to as well, including the right to vote and the right to own firearms.

The social stigma from having a felony conviction as well as having a DWI conviction can haunt you for the rest of your life. With consequences this severe, your best bet is to get the best DWI defense attorney Houston has to offer. Doug Murphy is an experienced trial lawyer that aggressively defends the constitutional rights of his clients. He has the background and experience to help you build the best legal defense possible in any DWI case regardless of the perceived challenges.

Can you get probation for a third DWI in Texas?

Texas law does allow for felony probation. So while a third offense DWI carries a minimum prison term of two years, it is possible that the bulk of your prison sentence will be served through probation. You will only have to serve the full prison term if you violate the terms of your plea agreement. It is worth noting that a prerequisite to felony parole in Texas is that you serve at least 10 days in jail. Many prosecutors condition their offer of probation on serving at least 30 days in jail as a condition of receiving probation. The specifics would depend on the plea agreement negotiated by your attorney and the prosecutor. The judge in your case will have the final say on whether a plea agreement will be allowed or not. One benefit of hiring an experienced Houston DWI Defense attorney is that he or she will have first-hand knowledge of what the specifics of a typical plea agreement might look like.

While a plea bargain might make sense in some cases, the best defense in almost all cases is to have a trial and force the State of Texas to prove its case against you. Some defense attorneys are content pushing their clients into plea deals, taking their money, and keeping the conveyor belt of easy plea agreements rolling. Doug Murphy is not one of those attorneys. Doug Murphy is a trial attorney who prepares every case for litigation. He is battle-tested and knows first-hand what it takes to prevail in a Houston DWI case.

What happens after three DWIs in Texas?

Every charge for driving while intoxicated in Texas following a third conviction is treated the same as if it were a DWI third-offense. A subsequent DWI is a Third Degree felony under Texas law. It carries a prison sentence of between 2 years and 10 years in state prison as well as a maximum fine of $10,000. Ultimately, the maximum amount you may have to pay could greatly exceed the maximum fine when you take into account court costs and driver's license fees.

However, the consequences of additional DWI convictions can go up drastically with each stint you serve in a Texas prison. If you are convicted of a third or subsequent DWI and have previously been sent to prison for a DWI, you face a 2nd Degree felony with a potential sentence between two years and 20 years in state prison. With two prior trips to a Texas prison, you face spending 25 years to life in the Texas Department of Criminal Justice. As you can see, prior convictions for driving while intoxicated can be life-altering if you have been charged with another DWI.

The Doug Murphy Law Firm, P.C.

Your best bet for achieving the best possible outcome in your court case is hiring the right DWI defense attorney. If you have been charged with a DWI in the Houston, Texas area, then the attorney to retain is Doug Murphy. When it comes to DWI defense attorneys, Doug Murphy stands out from the crowd. He is one of only two attorneys in Texas that is a board-certified expert in both criminal defense law and DWI defense. Doug's proven track record in the courtroom has led to his appointment to a number of city, state, and national criminal defense organizations. He is a popular speaker that is regularly engaged to help his fellow attorneys approve their criminal defense and DWI defense practices.

Doug Murphy is a fierce advocate of his clients' constitutional rights. Not content to push his clients into easy plea deals, Doug Murphy takes on every case ready to go head-to-head with the State of Texas in front of a jury of your peers.

If you have been charged with a DWI it is important to act quickly. The sooner Doug Murphy can review police reports and investigate the facts of your case, the more likely he will be able to preserve evidence helpful in your defense. To discuss the merits of your case, contact Doug Murphy Attorney at Law for your free consultation today.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.