If you're arrested for driving while intoxicated (DWI) in Texas, you certainly have a lot to worry about. High on the list is whether police will charge you with a felony or a misdemeanor. First, it's important to remember that an arrest for DWI does not mean that a court or jury will automatically convict you of a DWI. Second, suppose a court or jury does find you guilty. Then, the severity of your punishment can depend on several factors, including whether this is your first offense, your blood alcohol content, whether anyone else was injured, and whether you had a child under 14 in the car. But, even if law enforcement charges you with a misdemeanor, a guilty finding can still have consequences, including jail time, fines, and a license suspension.
What is Driving While Intoxicated?
As a starting point, it is important to understand the basic crime at issue. So, what constitutes a DWI in Texas?
A driver is intoxicated in Texas if they:
- Are impaired, meaning they no longer have the normal use of their mental or physical faculties; or
- Have a blood alcohol content of .08% or higher.
Tex. Penal Code § 49.01 (2001). However, if you have a commercial driver's license in Texas, the legal BAC limit is .04%. This low limit means that police can charge some commercial drivers after they've consumed only one drink.
It's also important to note that the police can arrest you regardless of your blood alcohol content if they believe you don't have the normal use of your mental or physical faculties because of alcohol or drugs. Your BAC does not have to be at or above the legal limit. However, if police arrest you and your BAC is below the legal limit, charging you with DWI is a judgment call on the arresting officer's part. This judgment is easier to challenge in court.
Will Police Charge Me with a Felony or Misdemeanor DWI?
Whether the police charge a DWI as a misdemeanor or a felony depends on several factors, including whether this is your first offense. Texas law classified misdemeanors as A, B, and C, with A being the most severe. A Class A misdemeanor will carry a longer jail term, higher fines, and a longer license suspension than a Class C misdemeanor. A first DWI is a Class B misdemeanor in Texas.
Felonies are also classified by degree according to the severity of the crime. Felonies range from first-degree to third-degree in Texas, with first-degree felonies being the most serious. First-degree felonies are typically reserved for the most heinous of crimes and carry the stiffest of penalties. A third or subsequent DWI conviction is typically a third-degree felony.
1. First DWI
A first DWI is typically a Class B misdemeanor in Texas. What does this mean? If convicted, you face:
- A minimum of 72 hours in jail and up to 180 days jail;
- Up to a $2,000 fine;
- Suspension of your driver's license for 90 days to one year.
2. Second DWI
A second DWI is usually a Class A misdemeanor. If convicted, you'll face:
- Jail for 30 days up to one year;
- A fine of up to $4,000;
- A driver's license suspension of 180 days to two years.
3. Third or subsequent DWI is a Felony
A third or subsequent DWI is a third-degree felony. If convicted, you'll face:
- Prison for two to ten years;
- A fine of up to $10,000;
- A driver's license suspension of 180 days to two years.
4. Driving with an Open Container
If you have an open container of alcohol in the car, it is a Class B misdemeanor punished with at least six days in jail. Whether you are the driver or a passenger, having an open container of alcohol in the car is a $500 fine.
Texas recently added mandatory amounts to the fines you can receive for a DWI, including:
- $3,000 for the first DWI in 36 months;
- $4,500 for any subsequent DWI in 36 months; and
- $6,000 for a BAC of .15% or higher.
The state imposes these penalties in addition to any fines a court may impose. They are not negotiable and apply to both felony and misdemeanor DWI charges.
Some Circumstances Can Increase the Severity of Your Charge
In Texas, some aggravating circumstances can increase the severity of your DWI charge, even if this is your first charge for a DWI.
1. Driving with High Blood Alcohol Content
Under Texas. Penal Code § 49.04, (2003). If an intoxicated driver's blood alcohol content is .15% or more, it is a Class A misdemeanor, even if this is your first DWI charge. Moreover, a second or subsequent DWI with a BAC of .15% or more will land you a third-degree felony charge, punishable with two to ten years in prison.
2. Having Prior Criminal Convictions
If the police arrest you for a third or subsequent DWI and you have previously served time in Texas for any offense, including those completely unrelated to DWI, police will also charge you with a second-degree felony. A second-degree felony is punishable with two to twenty years and up to a $10,000 fine.
3. Driving with a Child Passenger
If the police arrest you for a DWI with a child passenger under 15 in the car, the police will charge you with a state jail felony. A state jail felony is punishable with 180 days to two years in jail and up to $10,000 in fines.
4. Someone Was Seriously Injured or Died
Intoxication assault is a separate charge from DWI when a driver is intoxicated and causes “serious bodily injury” to someone. See Tex. Penal Code § 49.07 (2001). Serious bodily injury means an injury that creates a substantial risk of death, permanent disfigurement, protracted impairment, or loss of a bodily member or organ. Intoxication assault is a third-degree felony, punished with a prison sentence of two to 10 years and up to a $10,000 fine.
In some circumstances, intoxication assault can be a second-degree felony if the accident causes “serious bodily injury to a firefighter or emergency medical services personnel while in the actual discharge of an official duty.” Tex. Penal Code § 49.09 (b-1)(1). Likewise, intoxication assault can also be a second-degree felony if the accident causes a traumatic brain injury resulting in a persistent vegetative state.
Intoxication manslaughter is also a separate charge from a DWI. If an intoxicated driver causes an accident that leads to someone else's death, it is a second-degree felony. A second-degree felony is punishable with two to 20 years in prison and up to a $10,000 fine.
Additional DWI Penalties
Aside from jail time, fines, and losing your license, you can also face additional DWI penalties in Texas:
- After two or more DWIs, you must install a special ignition switch that prevents your car from starting if you've been drinking; and
- DWI intervention or education program.
Once arrested, if you refuse to submit to a breath or blood test to measure your BAC, you may lose your license for more time. The arresting officer will give you a written statement warning you that refusing to take a breath test can be used against you in court. The statement also informs you that you will lose your license for a minimum of 180 days, or two years if you have another alcohol or drug-related law enforcement contact within ten years. The police will then get a warrant for a blood test.
Consequences of a DWI Conviction
Whether you face a misdemeanor or felony DWI charge, any DWI conviction is still serious. You can face jail time, a hefty fine, and loss of your license. In addition to the legal penalties, a misdemeanor DWI will appear on criminal background checks by the FBI, state agencies, and private companies. With a felony conviction, you can also lose your ability to vote and your right to own a firearm. In some states, you can also lose your ability to hold public office. You could face:
- Difficulties during the job hiring process, particularly for jobs involving driving or educating or caring for children;
- Limitations on your ability to obtain professional licenses such as medical, dental, legal, or nursing;
- Ineligibility for financial aid for undergraduate or graduate degrees;
- Difficulty renting a home or apartment; and
- Difficulty obtaining a mortgage or other loans.
With either a misdemeanor or felony conviction, you will have a criminal record. You may be unable to hold a security clearance, work for law enforcement agencies or the military, and face difficulties finding a job or even housing.
Hire a Texas DWI Specialist
Remember that facing a DWI charge doesn't mean that a court will convict you. You can defend a DWI with the right lawyer. You have options, and a skilled criminal defense attorney with experience handling DWIs can give you the best chance of keeping your record clean.
Whether you face a misdemeanor or felony, you need a lawyer who understands all the issues involved—someone with a proven track record of experience to help you through this. Annually heralded as one of the Best Lawyers in America by US News & World Report, Doug Murphy is a Board Certified specialist in criminal law and DWI defense, and one of only two attorneys in the entire state of Texas to hold both credentials. Best Lawyers in America also recently named Doug the “Lawyer of the Year” for 2021 in DWI defense based on the peer reviews of fellow Houston-area attorneys. Contact Doug today to begin to minimize and repair the damage—to your future.