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  • Writer's pictureJustin Sparks

How Many DWI Is a Felony in Texas?

The legislation in Texas is strict when it comes to the consequences of a DWI. However, first-time offenders may receive a lenient penalty, and many people who are stopped for drunk driving face felony charges. The answer to whether a DWI will constitute a felony in Texas is that it depends on the previous records of the convict.

An individual's previous offenses may significantly impact whether the DWI conviction is charged with a misdemeanor or a felony. In fact, the outcomes for two different people who were both arrested under the same circumstances could be very different.

It is essential to work with a DWI defense lawyer with experience, like Sparks Law Firm lawyers, who have focused their practices on DWI conviction charges.

Is DWI a Criminal Offense in Texas?

Is DWI a Criminal Offense in Texas?

Yes. According to Section 49.04 of the Texas Penal Code, a DWI is prohibited in Texas. It could be a felony or a misdemeanor, depending on the circumstances. The law states that it is forbidden for someone who is intoxicated to drive in a public area.

According to the Texas Penal Code, intoxication is defined as:

  • Being unable to utilize mental or physical abilities normally due to drinking alcohol, consuming drugs, prohibited substances, combinations of two or more substances, or any other substance.

  • Having a blood alcohol level of 0.08 or above.

Based on this definition, the prosecution has two ways to demonstrate that the convict was driving while intoxicated. The prosecutor will find evidence to prove that the convict wasn’t entirely in control of the car under the influence. He/she can accuse the convict of having an open container in the car or having an alcoholic breath.

As per the protocol, the arresting officer will also conduct and observe field sobriety tests to determine the intoxication. These tests are intended to measure and document factors like eye nystagmus and reaction time.

In any case, it's crucial to secure legal counsel from a Board Certified DWI attorney who isn't afraid to contest breath, blood, or field sobriety tests either before or during the trial.

What Penalties Are Forced for a DWI/DUI Conviction?

A DWI in Texas is a serious offense, and a convicted felon will be subject to penalties such as a prison sentence, extended license suspension, and heavy fines. Some people with a DWI arrest are also ordered to attend court-ordered alcohol education sessions. Additionally, they may be subject to the following:

  • Supervised probation

  • Counseling or rehab

  • Community service

The convicted felon must have an ignition interlock device installed on their car. Specific charges and DWI punishments in Texas will depend on the BAC at the time of arrest, any prior DWI convictions, and other factors.

As per Texas law, if any aggravating factors, such as intoxication assault, lead to a DWI arrest that results in property damage or personal injury, there will be a felony conviction subject to harsher punishments.

It is important to understand that irrespective of whether a person's DWI accusation is filed as a misdemeanor DWI or a felony DWI, the felon has the right to challenge their DWI driver's license suspension within 15 days starting from the day of the arrest.

Texas DWI Offenses and Penalties at the Felony Level

A DWI accusation is mostly escalated to a felony if the convict already has at least two misdemeanor DWI arrests on record. Even for a first or second DWI conviction, there are several situations where people may face felony charges.

Intoxication Assault

The felon will still be charged with a third-degree felony if they cause injury to another driver or a pedestrian while under the influence, even if it is the first DWI conviction.

A DUI-related assault is punishable by:

  • Two to 10 years in state prison

  • Up to $10,000 in fines

One of the important things to consider in intoxication assault charges is whether the claimed intoxication directly caused the victim's injuries. That is to say, the State of Texas must establish beyond a reasonable doubt that the intoxication was the cause of the damage. The Texas legislature would have to reduce the charge to a misdemeanor DWI if this essential part of the offense could not be shown beyond a reasonable doubt.

Intoxication Manslaughter

According to criminal law, an individual could be prosecuted for intoxication manslaughter if another driver, pedestrian, or passenger dies while he/she is operating a vehicle under the influence. Intoxication manslaughter is considered a second-degree felony, which is punishable by:

  • Two to 20 years in state prison

  • Up to $10,000 in fines

This second-degree felony also calls for proof that the victim's drunken state was the real reason the victim died. If the case proceeds to a jury trial, no evidence stating otherwise will lead to a not-guilty verdict.

DWI with a Child in the Car

If the felon is stopped with a child passenger under the age of 15, they will be charged with a DWI with a child passenger. The only difference between a misdemeanor DWI and a DWI with a child passenger under Texas law is that a child was in the car when the driver was arrested.

A DWI with a minor passenger is a State Jail Felony that carries the following penalties:

  • 180 days to two years in prison

  • $10,000 fines

First DWI Offense

Anyone with a first Texas DWI conviction is charged as a Class B misdemeanor DWI with three to 180 days in prison and up to $2,000 in fines.

Second Felony DWI Offense

A second felony DWI in Texas is reported as a Class A misdemeanor charge, which is punishable by 30-365 days in prison and up to $4,000 in fines.

Third Degree Felony

A third DWI offense is considered a third-degree felony because, after two DWI convictions, it is considered a drunken habit. The maximum penalty for a third DWI in Texas is a $10,000 fine and a 10-year prison sentence with a criminal record.

However, a second-degree felony DWI charge is brought against the convict if they have previously served time in the Texas state prison and committed a third or higher DWI violation. The convict will face the following penalties:

  • One prior jail time: two to 20 years in state prison

  • Two or more imprisonments: 25 years to life in state prison

  • Up to a $10,000 fine

What Happens After the Third Texas DWI Conviction?

Anyone detained in Texas for a felony DWI conviction is eligible for a bail release. The felony DWI charge for a third offense carries larger bail amounts and tougher release conditions. A grand jury must indict a defendant in order for the state to file charges in any felony case. The DWI defense attorney can help gather evidence for bail.

What Is the Bail Amount in Texas for a Third DWI?

After considering various aspects, including community safety and the likelihood that the prisoner will appear in court, a magistrate judge may set bail at any sum they see fit. Bond for a third driving while an intoxicated felony is often $10,000 or higher.

What Are the DWI Third Bond Requirements?

All cars an individual has access to drive must be equipped with ignition interlock devices or other deep lung devices that monitor blood alcohol content (BAC). There may also be additional requirements, such as drug testing, travel limitations, and regular pretrial reporting. Hiring a DWI defense attorney, in this case, can be beneficial for lenient sentences.

How Does a DWI Affect a Person's Criminal Record?

A Texas DWI charge stays on record permanently in addition to being punished with jail time, fines, fees, and the suspension of their driver's license. The consequences of having a DWI on record can greatly impact the convict's life.

Employers may reject the application for a job, and landlords can decline to rent their home or an apartment because of the conviction.

After a DWI arrest, the convict cannot apply for or maintain many types of professional licenses. Universities and colleges have the option to reject their application. The ability to serve on a jury, cast a ballot, or possess a handgun in Texas may be taken away if the DWI conviction involves felony charges.

How Long Does a DWI Stay on Record?

Not every DWI conviction is treated equally in several states. These states use a "lookback period," which is a time frame after which any DWI arrests are not taken into account when deciding what charges to bring against a person. The state of Arkansas, for example, has a five-year lookback period. This implies that the convict will be charged with a DWI first offense even if they have 12 DWI convictions on record that are all at least five years old.

Texas is one of the nine states without a lookback period. Prosecutors in Texas will consider any DWI conviction ever had, regardless of how old they are. A DWI conviction can have a lasting detrimental impact on a person's life. Therefore, choosing the best DWI defense lawyer is crucial to preserving both freedom and means of support.

Fortunately, the convict might now qualify for an expunction or for having the first DWI conviction concealed.

Can a DWI Convict Remove the Charge from Their Criminal Record?

The answer to this question relies on the type of DWI that the person is charged with and how it was resolved. In general, the convict won't be able to have a charge expunged from their criminal record if they receive a conviction for DWI over 0.15, which is considered a Class A Misdemeanor.

However, that person might be qualified for non-disclosure if the quality DWI lawyer successfully reduces the DWI over.15 to the less serious charge of a Class B Misdemeanor. That would be an exception if someone were hurt due to a DWI accident. The law forbids the possibility of concealing the arrest records if someone was hurt during the DWI incident.

Texas law now allows for a kind of probation known as deferred adjudication for eligible DWI cases, which does not result in a conviction. Even though the convict must enter a guilty plea or no contest, the judge never finds them guilty. The judge will consent to dismiss the case and end the probation in exchange for adhering to all of its requirements.

If the attorney successfully negotiates a deferred adjudication for a first DWI offense, and the convict complies with the requirements of the deferred probation, they can have the criminal records sealed.

Can a Convict Get Probation After the Third DWI in Texas?

The State of Texas does permit criminal probation. As a result, even though the third offense of DWI has a mandatory minimum penalty of two years in jail, it's probable that the convict will spend most of that time on probation.

If the person arrested breaks the plea agreement's terms, they must serve the entire sentence in jail. It's important to remember that serving at least ten days in jail is a requirement for felony release in Texas. The specifics depend on the plea bargain that the convict and the prosecution negotiate.

What Is the Texas Driving Alcohol Limit?

What Is the Texas Driving Alcohol Limit?

According to the law, the State of Texas can demonstrate that the convict was drunk by proving that they had a blood alcohol concentration (BAC) of .08 or higher while driving. Alcohol concentration is defined by the Texas Penal Code as the quantity of alcohol in grams per:

  • 210 liters of breath

  • 100 milliliters of blood

  • 67 milliliters of urine

The driver will be arrested if the BAC test results in a .08 or above rating.


The best bet for achieving fair outcomes for a DWI legal case in Texas is choosing the best defense lawyer from the Sparks Law Firm. They are renowned for their experienced and skilled lawyers in the legal world that are ready to challenge everything for their clients.


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