Texas DWI Penalties: First, Second and Third Offenses

I hate to say this, I really do, but technically you can have a drink and get behind the wheel of the car. Some of us can have more than one drink and legally get behind the wheel and drive. It's not against the law to drink and drive. Where DWIs come into play is when you get into the car already intoxicated or become intoxicated while driving a motor vehicle. It's against the law to be drunk and drive.

If you've ever consumed an alcoholic drink, you're aware that it requires more than one to become intoxicated in the absence of other substances. Even after having 3 drinks, it takes some time to feel the effects of alcohol. This isn't personalized legal advice, but this is our approach to winning such cases at The Smotherman Law Firm.

Still, you or a loved one might have been stopped for weaving between lanes or driving too slowly at night. I understand. It happens. However, that doesn't automatically mean you're guilty, even if it's your third arrest for this— I'm serious.

To secure a conviction for any DWI, the state's prosecution must demonstrate that you lost control of your physical and mental faculties as a result of [voluntary] alcohol intoxication at the moment of the stop. AT THE TIME OF THE STOP. Not when you blew into the breathalyzer, not when your blood was drawn, nor when you stumbled trying to walk in a straight line and count to 9 at the police station. AT THE STOP.

Naturally, it's understandable why numerous criminal defense attorneys say "do not blow" and advise against taking the breathalyzer test. Personally, I don't have a strong opinion on whether you blow or not. Perhaps you don't blow because it's not mandatory, but if you choose to, that's your decision. If it's your 3rd DWI though, I'm going to ask you not to blow.

The reasoning behind the advice to decline providing a breath sample is as follows: if you stop drinking at 10:30, get into your car at 10:45, and are pulled over at 11, you've been absorbing alcohol for 30 minutes. By the time the officers conduct their investigation, call for backup, ask you to perform sobriety tests, arrest you, search you, and tow your car, it could be 11:45 if they're efficient. Reaching the hospital might take until midnight, and the nurse drawing your blood could be around 12:15. Nearly two hours would have passed. The blood test is likely to show a BAC over .08, but it might not have been that high at the time of the stop, and we'll never know for sure. This uncertainty provides grounds for reasonable doubt. This argument is quite nuanced, involving a lot of science and a bit of math.

However, you're here to get information about the penalties, so here's the breakdown:

1st DWI

This is considered a misdemeanor unless a child under 15 is in the vehicle. The classification as either Class A or Class B hinges on your blood alcohol concentration (BAC) level. A BAC of .15 or higher results in a Class A misdemeanor, while a BAC between .08 and .15 is classified as a Class B misdemeanor.

A Class B Misdemeanor in the State of Texas is punishable by up to 6 months in jail and up to a $2,000 fine. DWIs come with Statutory Fines and Drivers License Suspensions and Interlock installations on your car.

A Class A Misdemeanor in the State of Texas is punishable by up to a year in jail and up to a $4,000 fine. The License suspension usually doubles as do the statutory fines.

2nd DWI

A second DWI offense is classified as a Class A Misdemeanor, regardless of your BAC level. However, handling a second DWI can be complex. In Texas, the law specifies that only DWI convictions are considered, not DWI arrests.

This distinction has helped some of my party-loving clients who received 2 or 3 DWIs in quick succession, as no convictions were secured by the state. As a result, we ended up fighting 3 Class B DWIs instead of a Class B, a Class A, and a 3rd degree Felony.

And if that's not foreshadowing, I don't know what is!

3rd DWI

Prepare to transition from County Court to District Court—a third DWI offense is classified as a 3rd degree felony. This means no more jail time, but rather more prison time. The minimum sentence a jury can consider is 2 years in the Texas Department of Criminal Justice. Inmates there are referred to as "offenders" and are dressed in white jumpsuits.

The same defenses that are available to you on the first and second DWIs are still available for the 3rd, but the state has to prove that this is the 3rd time. If the state gets up in front of that jury and talks about the first 2 times your were convicted of DWI, then it's that much more of an uphill battle trying to convince 12 people that they got it wrong this time. It can be done, but just know this is the legislature sending a message. They made it to where you can go to prison for as many as 10 years. The fine is up to $10,000 too.

But we have found with the people who have come into our firm, by the 3rd time around they pretty much know how to deny searches and not perform field sobriety tests. Cowboy experience can help, but it's still a rodeo.

Bonus

Children

Another type of case we encounter involving DWIs is when there is a child under 15 years old present in the vehicle—this is classified as a state jail felony. In such instances, you leave the county jail but do not go to state prison; instead, you are sent to state jail, where your stay can range from 6 months to 2 years. In some counties, this charge is added on top of the underlying DWI charge, resulting in two separate cases.

Accidents

Although causing property damage does not affect your DWI charge, if you hit and kill someone, it becomes vehicular manslaughter, which is a second-degree felony. This can result in a prison sentence of 2 to 20 years and a maximum fine of $10,000.

DUI vs DWI in Texas

Driving Under the Influence (DUI) and Driving While Intoxicated (DWI) involve the same analysis. If you're stopped for a DWI and fail all field sobriety tests but register a breathalyzer result of .00, .04, or any level below .08, law enforcement typically conducts a blood test to check for drugs. When a DWI investigation shifts to a DUI investigation, it's because authorities suspect you might be under the influence of drugs rather than alcohol. Laboratories can only detect the presence and concentration of these substances, compounds, herbs, or fungi in your blood.

Call an Uber.

Or a lyft, or your child's mother, or your parents, or your roommate. Live on the metrorail. Live in Midtown and walk everywhere. Don't get on a bike— that's technically a motor vehicle in the eyes of the law. I know, I know. I'm just letting you know, it would be a shame to watch the dash cam footage of you getting pulled over on a bike. Same for golfcarts, scooters, segways, hoverboards, one wheels, anything with wheels and a driving mechanism. Sidenote: I'd be curious to see how the state treats a case where someone is on skates or skateboarding— but that one hasn't come through my office just yet.

I truly hope this helps.

If you are facing a DWI charge in the Greater Houston area or require a skilled lawyer willing to travel to Austin, Dallas, San Antonio, or within a 3-hour radius of Houston, please connect with the firm via social media, complete our contact form, or send us a text at 281-455-0902 to begin the process. Personally, these are my preferred cases to handle because I have a background in math and science, which is quite rare among lawyers, particularly prosecutors.

If you find yourself jammed up in the court system on a DWI or any other misdemeanor or felony charge, just remember #gogetgary

Be safe out there, Texas.