One of the most important starting points for determining how serious a DWI is, is to look at the level it is being charged. Not every DWI charge in Texas is the same. A “run of the mill” Class B misdemeanor will be handled very differently than a third DWI charged as a third degree felony.
A first DWI will usually begin as a Class B misdemeanor. But the charge can become more serious based on your alcohol concentration, your prior DWI history, whether a child was in the vehicle, and other circumstances surrounding the arrest.
One of the first things we do when reviewing a new DWI case is determine exactly what the State is alleging and why the case has been charged at that level.
Here are the DWI charges we see most often in Travis County.
First DWI
For most people with no prior DWI history, a DWI begins as a Class B misdemeanor.
Under Texas law, the State must prove that you were:
- intoxicated;
- while operating a motor vehicle;
- in a public place.
The prosecutor must prove each element beyond a reasonable doubt.
What Does “Intoxicated” Mean?
Texas provides two basic ways for the State to prove intoxication.
A person is intoxicated if the person:
- does not have the normal use of mental or physical faculties because of alcohol, drugs, a controlled substance, another substance, or some combination of them; or
- has an alcohol concentration of 0.08 or more.
This means the State does not necessarily need a breath or blood result of .08 or higher to prosecute someone for DWI. In fact, they can sometimes prove intoxication without any alcohol at all if a blood test later reveals drugs or prescription medications that can affect normal mental or physical faculties.
A person can refuse testing, test below .08, or have no usable chemical test at all and still be prosecuted if the State believes the other evidence proves loss of normal mental or physical faculties.
That evidence might include driving behavior, body-camera video, statements, field sobriety tests, officer observations, or other evidence collected during the investigation.
Whether that evidence actually proves intoxication is a different question. We address that later under DWI Defenses.
What Does “Operating” Mean?
Texas’s DWI statute uses the word operating, not simply “driving.” A running vehicle in a public place can qualify as operating, even if the person has no intent to drive the vehicle.
Often, this is used to prove a DWI when the police suspect the person of driving recently, but cannot prove it. Most DWI cases involve an officer actually seeing the defendant driving. Police may encounter someone after an accident, inside a parked vehicle, or after the person has already left the vehicle.
In those cases, whether the State can prove who operated the vehicle—and when—can become an important issue.
What Is a “Public Place”?
A DWI must involve operation of a motor vehicle in a public place.
That obviously includes ordinary public roads and highways, but Texas’s definition of a public place is broader than just a city street. It can include any place where the general public is generally allowed. So, private parking lots or private drives can be considered a public place. Generally, your own driveway is not considered a public place, but there are exceptions.
Is a First DWI Always a Class B Misdemeanor?
No. A standard first DWI is generally a Class B misdemeanor, but particular facts can increase the classification of the offense. The most common example is an alcohol concentration of .15 or higher.
DWI With a BAC of .15 or Higher
A first DWI can be charged as a Class A misdemeanor if analysis of the person’s blood, breath, or urine shows an alcohol concentration of 0.15 or more at the time the analysis was performed.
The statute does not simply say that the State must prove your alcohol concentration was .15 or higher when you were driving. The enhancement is specifically written in terms of the alcohol concentration shown at the time the specimen was analyzed. At trial, the prosecutor still must prove intoxication at the time of driving. Therefore, the length of time between driving and when the test is taken does matter. A breath test given immediately after driving might carry more weight that a blood test taken six hours later.
Does a .15 Result Automatically Mean the State Can Prove the Enhancement?
No.
The chemical-test evidence still has to be admissible and reliable.
Depending on whether the case involves breath or blood testing, there may be questions about the specimen, testing procedures, laboratory analysis, search warrant, machine records, chain of custody, or other evidence. A .15 blood test is evidence of intoxication, but on its own, it does not prove anything.
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Second DWI
A DWI becomes substantially more serious when the State alleges a prior qualifying intoxication conviction.
If the State proves that the defendant has previously been convicted once of a qualifying intoxication offense, a subsequent DWI is generally enhanced to a Class A misdemeanor. The DWI or DUI can come from any state – it doesn’t have to be Texas. However, simply being charged with a DWI does not count. If the previous case was dismissed, it does not enhance the present case.
Texas law provides a minimum term of confinement of 30 days for a DWI enhanced by one qualifying prior conviction. However, there are often ways to avoid this “mandatory” jail time. More on that later.
What Counts as a Prior DWI?
This is more complicated than simply asking whether someone has been arrested for DWI before. An arrest is not the same thing as a conviction.
The State must establish a qualifying prior conviction that can legally be used for enhancement. Texas’s enhancement statute also reaches certain prior intoxication offenses other than ordinary automobile DWI, including qualifying convictions involving aircraft, watercraft, and amusement rides.
Does It Matter How Old My First DWI Is?
Potentially—but not in the way many people assume. There is a persistent belief that a DWI conviction simply “falls off” after a certain number of years and can no longer affect a future DWI charge.
Texas does not have a simple general rule that an old DWI conviction disappears for enhancement purposes merely because enough time has passed. However, prosecutors will often take this into account when building a plea offer. If a person has gotten two DWIs in 2 years, the prosecutor may feel that the defendant has not “learned his lesson”. A prior DWI from over 20 years ago may be treated differently. This is an example of how no two cases are exactly alike.
DWI With a Child Passenger
DWI with a child passenger is different from the .15 and second-DWI enhancements because Texas gives it its own statutory offense.
A person commits DWI with a Child Passenger if the person:
- is intoxicated while operating a motor vehicle in a public place; and
- the vehicle is occupied by a passenger younger than 15 years old.
This is a state jail felony, even if the defendant has never previously been convicted of DWI. This is true even if a person is not extremely intoxicated, but is barely over the .08 BAC threshold, for example.
This Can Turn a First DWI Into a Felony
A person with no criminal record can be arrested for what would otherwise be a first-offense misdemeanor DWI and face a felony simply because a child under 15 was in the vehicle.
The State still has to prove the underlying DWI elements. The presence of the child does not eliminate the State’s obligation to prove intoxication and operation. But if those elements are established along with the presence of the qualifying child passenger, the offense is a felony rather than a misdemeanor.
Third DWI
A third DWI is generally a third-degree felony in Texas. More precisely, a DWI can be enhanced to a third-degree felony when the State proves the defendant has previously been convicted two times of qualifying intoxication offenses. That makes the prior-conviction allegations a critical part of the case.
The State Has to Prove the Prior Convictions
The prior convictions are what allow the State to elevate an otherwise misdemeanor DWI into a felony. The prosecution therefore must establish the qualifying prior convictions necessary for the enhancement.
Questions can include whether the prior judgments actually involve qualifying offenses, whether the defendant is the person identified in those records, whether an out-of-state conviction qualifies under Texas law, and whether there is some legal problem with using a particular conviction for enhancement.
A Third DWI Changes the Case Significantly
Once the charge becomes a felony, the case moves into a different category of criminal prosecution. The potential punishment is greater, the case will ordinarily proceed in district court rather than county court, and a felony conviction carries consequences that extend well beyond the immediate sentence. Jail time in such cases becomes a real possibility, along with mandatory in-patient care like “SAFPF”.
We discuss those consequences in more detail under DWI Penalties and Long-Term Consequences.
Other Circumstances Can Change a DWI Charge
These five categories cover many of the DWI cases filed in Travis County, but they are not the only possibilities.
For example, Texas law now provides that a DWI committed while operating a motor vehicle in a school crossing zone during the time the reduced speed limit applies is a state jail felony.
Cases involving serious injury or death can result in much more serious charges such as Intoxication Assault or Intoxication Manslaughter.
Those offenses deserve separate treatment because the State must prove additional elements beyond an ordinary DWI.
The Charge Tells Us the Starting Point—Not the Outcome
When you look at your jail paperwork or online court record, you may see:
DWI – Class B
DWI BAC ≥ .15 – Class A
DWI 2nd – Class A
DWI With Child Passenger – State Jail Felony
DWI 3rd or More – Third-Degree Felony
That tells us what the State is alleging. It does not tell us whether the State can prove it.
The next step is to examine how the government intends to prove the charge: the reason for the traffic stop, driving evidence, body-camera video, field sobriety tests, statements, breath or blood evidence, warrants, laboratory records, and everything else collected during the investigation.
That is where the classification of the DWI gives way to the more important question:
Can the State actually prove the case?
Next: DWI Defenses