Enhanced Penalties
The prior discussion on DWI third-offense penalties shows how Texas uses an enhanced-DWI-penalties statute Texas Penal Code 49.09 to elevate first-offense and second-offense misdemeanors into a third-degree felony when the defendant commits a third-offense DWI. On its own terms, without looking to any other statutes, Texas Penal Code 49.09 does the same with a fourth-offense DWI, elevating the multiple-DWI offense up from a misdemeanor to a third-degree felony.
The prior discussion on DWI third-offense penalties showed that under Texas Penal Code 12.34, third-degree felonies impose penalties of no less than two years and no more than ten years imprisonment, plus a fine of up to $10,000 and other terms like community service. Conviction of a fourth DWI offense would ordinarily, under the enhanced-penalty statute Texas Penal Code 49.09 and the third-degree-felony statute Texas Penal Code 12.34, bring those same penalties: two-to-ten years imprisonment plus a fine of up to $10,000. Plainly, a fourth DWI offense brings stiff penalties.
A fourth DWI offense would also bring with it additional administrative sanctions like those imposed for a third or other prior DWI offense, including mandatory license suspension and excessive fees. A fourth DWI offense will result in another two-year suspension of driver's license along with the $2,000-per-year surcharge. If the fourth offender manages, with the help of a skilled and trusted advocate like Texas DWI criminal-defense attorney Doug Murphy, to obtain a hardship license to drive to and from work, then the offender will pay additional costs for an ignition interlock device.
Minimum Penalties
While the minimum two years imprisonment does not increase between a third DWI offense and fourth DWI offense, the minimum may matter less by the time the defendant reaches a fourth offense. The concern is that any leniency with which the court may have treated the defendant whose third offense moved the punishment from a misdemeanor to a third-degree felony is likely gone by the time of a fourth DWI offense. A third offense may still seem like an unusual run of very bad luck. A fourth DWI offense seems far more clearly to reflect a serious problem.
Because judges may be inclined to increase the minimum sentence when a defendant moves from a third DWI offense to a fourth DWI offense, the skilled advocacy of an experienced and respected DWI defense attorney like Doug Murphy becomes especially important. As a Board Certified DWI Specialist and nationally recognized DWI lecturer, Doug has the insight, reputation, and discernment to show the court why it should impose the most-reasonable minimum term. To the convicted defendant, every day of potential incarceration counts. Don't fool around with jail terms.
Accelerating Enhancements
The possibility also exists that two intoxication crimes in one event can supply the basis for penalty enhancement. For example, in Ex parte Benson, 459 SW3d 67 (2015), a Texas appellate court held that intoxication assault and felony DWI are separate offenses for the enhancement statute Texas Penal Code 49.09, even when the assault and DWI occurred in the same event. More significantly, Texas law also presents a risk that the court may treat a fourth DWI offense not simply as a third-degree felony but as a second-degree felony. To appreciate that risk, first consider the differences in felony degrees.
Felony Degrees
As to crimes outside of DWI offenses, the Texas Penal Code's classification of felonies as first degree, second degree, or third degree has nothing specifically to do with the number of offenses. Felony degrees instead have to do with the reprehensibility or seriousness of the crime. As the chart here shows, Texas defines felonies in degrees, from first-degree crimes like aggravated sexual assault and theft of property over $200,000, down to lesser second-degree, third-degree, and state-jail felonies. The same chart shows that other second-degree felonies include aggravated assault and theft of property over $100,000, while other third-degree felonies include drive-by shooting without injury and theft of property over $20,000.
Degree Penalties
Naturally, the penalties increase as the felony degrees move from state jail to third degree, from third degree to second degree, and from second degree to first degree. While Texas Penal Code 12.34 imposes imprisonment of from two-to-ten years for a third-degree felony, a second-degree felony under Texas Penal Code 12.33 increases the penalty to no less than two years and no more than twenty years imprisonment, doubling from ten to twenty years the maximum prison term. When you begin to measure prison terms in decades rather than years, you know the penalties are severe.
Further Enhancement for Repeat Offenders
How, though, would a multiple-DWI offender face any more than a third-degree felony, when the enhanced-DWI-penalties statute Texas Penal Code 49.09 only raises the multiple-DWI offense to a third-degree felony? Another statute, Texas Penal Code 12.42, imposes stiffer penalties for repeat and habitual offenders, raising the conviction from third degree to second degree if the defendant had a prior third-degree conviction. Thus, a fourth DWI offense qualifying the defendant as a repeat offender could, if prosecutors pursue it, result in a second-degree felony, one for which Texas Penal Code 12.33 increases the penalty to up to twenty years imprisonment, doubling from ten to twenty years the maximum prison term.
While enhancement upon enhancement of penalties for repeat and habitual offenders seems harsh, Texas courts have imposed these stiffer sentences of more than ten years imprisonment on fourth DWI offenders. For example, the unpublished Texas appellate opinion in Lewis v State of Texas, Tex. Ct. App. 10th Dist. No. 10-09-00322-CR (August 3, 2011), affirmed a fourth-offense penalty of sixteen years of imprisonment and a $10,000 fine. Ten years is not always the maximum prison term for a fourth-DWI offender. A fourth DWI offense? Don't mess with Texas.
Sentencing Discretion
Fortunately, these statutes giving sentence ranges, both in imprisonment and fine terms, also give judges considerable discretion. That discretion creates a huge opportunity for DWI fourth offenders to benefit from the skilled advocacy of a DWI specialist like 2021 Houston DWI Lawyer of the Year Doug Murphy, who is one of only two Texas lawyers holding both a DWI Specialist Board Certification and Criminal Law Board Certification. Maximum prison terms are only worst-case scenarios, when with appropriate advocacy the sentence may be at or much closer to the minimum. Contact Doug Murphy Law Firm online or at (713) 229-8333 to discuss your case now. Trust Texas DWI attorney Doug Murphy with your defense, especially when it carries the risk of enhanced penalties.
