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Understanding Texas DWI Laws | Texas Penal Code 49.04

Texas Penal Code – PENAL § 49.09 | Understanding DWI Law in Texas

Within the Texas Penal Code, the severity of driving while intoxicated offenses and the corresponding punishments are clearly outlined. As part of Texas law, DWI convictions can lead to penalties ranging from fines and driver’s license suspension to imprisonment. These laws are designed to act as a deterrent and to penalize those who repeatedly endanger others by operating a motor vehicle while intoxicated. It’s imperative for individuals charged under this section to seek competent legal advice to navigate the complexities of the law effectively. If you or a loved one is charged with DWI, contact ATX Legal for a free consultation.

A charge for driving while intoxicated can ruin a fun night.  Drink responsibly.

DWI In Texas Penal code

Texas Penal Code 49.04 states:


(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

From Class B misdemeanor to 3rd Degree – What Causes Increased Penalties and Felony Charges for a DWI?

The escalation from a Class B misdemeanor under DWI laws is triggered by various aggravating circumstances. A second or subsequent offense escalates the charge to a class A misdemeanor. Anything beyond a second DWI is a third degree felony.

Other such factors include enhanced offenses where an individual causes bodily injury that is considered a serious bodily injury or when a DWI involves other offense under this section such as driving with a child passenger. If emergency medical services personnel were called for the other driver, you may be looking at a felony charge. Each subsequent offense relating to DWI also significantly increases the severity of penalties, including longer jail terms and higher fines. This structure is intended to provide increasing deterrents and to penalize more severely those who pose greater risks on the road.

Definition of “Intoxicated” – Impairment of mental or physical faculties

The legal definition of intoxicated in Texas highlights the importance of understanding how alcohol and drugs impair a person’s ability to operate a motor vehicle safely. The definition serves as a fundamental aspect of DWI law, impacting everything from the enforcement of laws to the prosecution of offenders. Being found with an alcohol concentration level that exceeds the state’s limit can result in immediate legal consequences, emphasizing the need for public awareness about the specifics of intoxication definitions.

Intoxicated can also extend beyond alcohol to a controlled substance or dangerous drug, even if there is a valid prescription. Driving while intoxicated can mean that you are intoxicated from any substance you ingested, but not if the impairment is due to a medical condition or if you are merely sleep-deprived.

An impairment of mental or physical faculties can lead to a DUI, even if a person's blood alcohol level is below .08.

What is the role of .08 BAC?

In Texas, a person found to have a Blood Alcohol Concentration (BAC) of 0.08% or higher is automatically considered to be driving while intoxicated, per Texas Penal Code. This BAC threshold is a critical measure used statewide to enforce DWI laws uniformly. The role of establishing a .08 BAC as the standard helps ensure that those operating a motor vehicle while intoxicated are held accountable, reflecting the state’s commitment to maintaining road safety.

You can be charged with driving while intoxicated if your BAC is under .08. If the officer believes your mental or physical faculties are impaired, you can be charged, regardless of the BAC.

What is “Operating a Motor Vehicle”?

Under the Texas Penal Code, operating a motor vehicle goes beyond mere driving; it includes being in control of a vehicle even if it is not currently in motion. This broader definition ensures that individuals who may attempt to operate a motor vehicle while intoxicated cannot avoid DWI charges merely because the vehicle was stationary. This aspect of DWI law underscores the preventative measures Texas takes to combat the dangers associated with intoxicated driving.

What is the Definition of Motor Vehicle?

The definition of a motor vehicle in Texas covers a broad range of vehicles, thereby broadening the scope of DWI enforcement. This inclusive definition ensures that any motorized vehicle, regardless of its specific function or the environment in which it is used, falls under the same DWI statutes. By covering a wide array of vehicles, the law closes loopholes that might otherwise be exploited to avoid DWI charges, ensuring comprehensive coverage and enforcement of the law.

ALR and DWI Suspension of Driver’s License for driving while intoxicated

The Administrative License Revocation (ALR) program plays a crucial role in Texas’s efforts to deter driving while intoxicated by enforcing license suspension immediately upon arrest. The ALR is a civil case and you do not have all the protections of a criminal trial. It should be considered a completely separate matter from the DWI, and you should ask your attorney if he/she is representing you for the ALR hearing. This highlights the potential immediate consequences regardless of the final criminal conviction. Individuals facing an ALR have a limited time to request a hearing to challenge the suspension, making timely legal counsel essential.

Is probation an option for misdemeanor DWI?

In Texas, probation for a misdemeanor DWI not only serves as a penalty but also offers rehabilitative opportunities to offenders. Conditions of probation may vary but are aimed at preventing future offenses and typically involve supervised community supervision. The courts may require offenders to undergo periodic alcohol concentration testing to ensure compliance, reflecting the strict monitoring associated with probation terms. Successfully completing probation can lead to various long-term benefits, including the avoidance of a permanent criminal record, which underscores the importance of adhering to its conditions.

Probation for felony DWI

Probation for felony DWI in Texas, while stringent, represents an opportunity for rehabilitation rather than just punishment. Eligibility and specific terms are typically contingent upon the offender’s prior criminal history and the specifics of the DWI incident, such as whether serious bodily injury was caused or a child passenger was present. The probation terms may include extensive community service hours and mandatory participation in DWI education programs, which are designed to address the behaviors leading to the offense.

What is SAFP?

Participation in the Substance Abuse Felony Punishment (SAFP) program is often a component of probation for felony DWI offenders in Texas, aiming at reducing recidivism through structured and comprehensive treatment plans. This intensive program includes phases that participants must complete, which may involve residential treatment, outpatient services, and aftercare, providing a full spectrum of support to address substance abuse issues comprehensively. The success of SAFP is critical in helping individuals reintegrate into society as responsible drivers, reducing the likelihood of future DWI incidents. It’s best to avoid SAFP if at all possible.

Can I get the DWI dismissed?

Challenging a DWI charge in Texas requires a detailed understanding of the law and a proactive defense strategy. Dismissal may be achieved if the defense can demonstrate significant flaws in the prosecution’s case, such as unreliable breathalyzer results or improper police procedures. Additionally, if it can be shown that the individual’s rights were violated during the arrest, this could lead to dismissal of the charges. Legal expertise is crucial in identifying and effectively arguing these points, highlighting the need for skilled representation in DWI cases.

ATX Legal handles DWI charges in Travis, Williamson and Hays Counties.

How can a criminal attorney help?

A DWI defense attorney navigates complex legal frameworks to protect the rights of the accused and minimize potential penalties. By leveraging thorough knowledge of both Texas Penal Code and criminal procedure, a defense attorney can identify weaknesses in the prosecution’s case, such as the mishandling of evidence or the invalidity of the traffic stop. Effective legal representation is key in mitigating the consequences of a DWI charge and can often be the difference between a conviction and a more favorable outcome.

Contact ATX Legal for a free consultation

Navigating DWI charges can be complex and stressful. ATX Legal provides expert legal representation, focusing on achieving the best possible outcomes for our clients. With a deep understanding of DWI laws and a commitment to defending your rights, our attorneys are prepared to help you understand your legal options and fight for your case. Contact us today to schedule your free consultation and take the first step towards resolving your DWI charges with confidence.

505 West 12th Street, Suite 200 Austin Texas 78701

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