​​​​© 2016 by Josh Marcum.

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Under Texas law, driving while intoxicated by drugs or alcohol is a criminal offense that can have extremely serious legal consequences. Authorities are actively looking for people who violate the law, and many drivers are surprised to learn that they can be accused of driving while intoxicated (DWI) even after only a few drinks. In some cases, drivers may be arrested for a DWI even if their blood alcohol concentration (BAC) is below the limit that the law defines as “intoxicated.”

Fortunately, there are often a number of ways in which a Texas DWI defense lawyer can help reduce the consequences you may be facing if you are accused of drunk driving. In some cases, an attorney may even be able to have the case against you dismissed or dropped by the state.

What is driving while intoxicated under Texas Law?

While drunk or drugged driving is illegal across the United States, each state has specific laws defining the offense and its associated legal penalties. In Texas, the general drunk driving law is found in Texas Penal Code Title 10, Chapter 49. The statute defines the term “intoxicated” in two distinct ways:

● Not having the normal use of your mental and physical faculties due to the consumption of drugs or alcohol; and/or

● Having a BAC of .08 percent or more.

For certain classes of drivers, the BAC limit is lower. For example, drivers who are under 21 years of age are prohibited from driving with any detectable amount of alcohol in their system, and commercial drivers are subject to a .04 percent legal limit.

Evidence of Intoxication

When investigating a driver suspected of driving while intoxicated by drugs or alcohol, law enforcement officers can use a variety of methods to gather evidence of intoxication and impairment. Objective measures of a person’s blood, breath, or urine can be used to determine a driver’s BAC. It is important to note, however, that a BAC above the legal limit is not necessary to legally accuse someone of DWI in Texas; instead, probable cause indicating that you are intoxicated is enough for an officer to arrest you.

Among the kinds of observations an officer can consider in determining whether a driver is intoxicated include observations about the driver’s appearance and behavior, the presence or odor of alcohol, and the driver’s performance on a variety of field sobriety tests.

Overview of DWI Penalties


Offense Level

Maximum Fine

Jail Range

License Suspension

1st DWI and BWIClass B MisdemeanorUp to $2,00072 hours to 180 days90 to 365 days

2nd DWI and BWIClass A MisdemeanorUp to $4,00030 to 365 days180 days to
2 years

3rd DWI and BWI3rd Degree FelonyUp to $10,0002 to 10 years in Texas Department of Criminal Justice (TDCJ)180 days to
2 years

Intoxication Assault3rd Degree FelonyUp to $10,0002 to 10 years in Texas Department of Criminal Justice (TDCJ)180 days to
2 years

Intoxication Manslaughter2nd Degree FelonyUp to $10,0002 to 10 years in Texas Department of Corrections (TDCJ)180 days to
2 years

DWI with child passengerState Jail FelonyMax Fine $10,0006mos. To 2 years in a State Jail Facility90 days to 2 years

1st DWI with Open Container EnhancementClass B MisdemeanorUp to $2,0006 days to 180 days90 days to 365 days

DWI Penalties: Minors

For the purposes of driving while intoxicated (DWI) and other laws involving alcohol, Texas law defines anyone under the age of 21 as a “minor.” Minors are prohibited from driving a motor vehicle with any detectable amount of alcohol in their systems. For a first offense, minors who are caught driving after drinking any alcohol face fines, probation, loss of their right to drive, mandatory enrollment in an alcohol education class, community service, and the installation of an ignition interlock device. These penalties increase significantly with each subsequent offense, and in many cases can include jail time. Fortunately, an experienced Texas DUI defense lawyer can often minimize these and other long-term consequences that minor DUI offenders may face.

DUI Penalties: Adults

The penalties in Texas associated with driving while intoxicated (DWI) have grown increasingly harsher over the past few decades. While specific penalties imposed after a DUI depend on a variety of factors, the most relevant are the number of previous offenses as well as your blood alcohol content (BAC) at the time of your arrest. Below is some information on the penalties that may be imposed after being accused of driving while intoxicated by drugs or alcohol:

• 1st DWI Charge / Offense – After your first DWI offense in Texas, you may be fined up to $2,000 and spend between three and 180 days in jail. Additionally, your license may be suspended for up to two years, and there may be an annual surcharge of as much as $2,000 to keep your license for three years. Finally, you may be required to install an ignition interlock device on your car and attend a DWI intervention or education program.

• 2nd DWI Charge / Offense – After a first offense, the penalties associated with DWI in Texas increase significantly. A second offense could result in fines of up to $4,000 and a jail sentence of one month to one year. The license suspension associated with a 2nd DWI offense can last up to two years, and there may be a three-year annual surcharge of up to $2,000. In addition, you may be required to install an ignition interlock device in your vehicle and attend a DWI intervention or education program.

• 3rd DWI Charge / Offense – The fine associated with a third or subsequent offense in Texas can be up to $10,000. In addition, offenders may be sentenced to 2 to 10 years in state prison, and have their license suspended for up to 2 years. There may also be a surcharge of up to $2,000 assed per year for three years. Finally, there may also be a requirement that you install an ignition interlock device in your vehicle and also that you participate in a DWI intervention or education program.

Fortunately for people accused of DWI in Texas, there are many ways that a DWI Crimianl defense attorney may be able to mitigate the consequences that you are facing. In certain cases, a skilled lawyer may even be able to have the case against you dismissed or dropped by the prosecution. The most effective way to ensure that your case is resolved as favorably as possible after is to call an experienced attorney as soon as you can after a DWI arrest.

DWI Crimes and Injury to Others

The Texas legislature has defined certain crimes involving DWI that involve injury or the risk of injury to others. These include:

• DWI with a child under 15 in the vehicle;
 Intoxication assault; and
• Intoxication manslaughter.

These offenses are prosecuted under different code sections than DWI law and expose offenders to much more serious consequences. Additionally, there are other “enhanced offenses” defined by the law, including injuring a firefighter, peace officer, or other emergency medical personnel, or causing a traumatic brain injury that results in a persistent vegetative state.

Understanding Probation

DWI Probation in Texas

Probation is an agreement between you and the judge in which the judge agrees not to impose a jail sentence in exchange for you agreeing to do (or not do) certain things during a set amount of time. This set amount of time is known as the probationary period. For a first offense, the probationary period can extend up to two years.

In most cases, if you have no prior convictions, then a judge will suspend your entire jail sentence and place you on probation for a minimum of six months. Typically, a probation period is one year in length. During probation, you are required to do the following:

  • Report to the probation officer assigned to you;

  • Pay fines, court costs, and monthly probation fees;

  • Do community service for 24 to 80 hours in duration;

  • Attend a Texas DWI Education class;

  • Attend a Victim Impact Panel (VIP);

  • Get a drug and alcohol evaluation;

  • Maintain a job and support any and all dependents; and

  • Take random urinalysis.

In addition to the things that you must do while on probably, there are also some things that you must not do. These include:

  • Drink alcohol or take drugs;

  • Visit bars, clubs, or lounges;

  • Violate the law;

  • Socialize with persons of questionable moral character; and

  • Refrain from committing a crime or associating with criminals.

If you receive a second DWI conviction, then your chances of having your entire jail sentence reduced in place of probation are much more minimal. Instead, there is a minimum 72-hour continuous confinement requires for a second DWI conviction. The judge may, however, suspect the rest of yours sentence and place on you on probation. For a third DWI conviction, which is considered to be a felony conviction, you must spend 10 days in county jail. After that, you may receive a probation sentence in lieu of a jail sentence that requires you to perform community service and participate in a substance abuse program.

Above intoxication manslaughter and intoxication assault are briefly discussed. If you obtain probation for intoxication manslaughter, then you will be required to serve a community service sentence ranging between 240 and 800 hours; serve a minimum jail sentence of 120 days; and participate in substance abuse/alcohol programs whether they be in-patient or outpatient. The penalties are similar with an intoxication assault probation—you will have to serve community service, serve in county jail for a minimum of 30 days, and participate in a substance abuse program.

Other DWI Penalties

Penalties for Refusing Chemical Testing

Anyone who operates a motor vehicle in Texas is subject to the “implied consent”

rule, which holds that by obtaining a driver’s license and operating a motor vehicle, you have consented to a chemical test if a law enforcement officer suspects that you are under the influence of drugs or alcohol. Because of this rule, you can lose your license if you refuse such testing. This suspension is completely separate from the criminal part of a DWI case, and can result in a license suspension of 90 days to two years.

Drivers will not lose their license immediately after a refusal takes place – after a refusal, you have 15 days to request an administrative hearing regarding your suspension. If you do not request a hearing, an automatic suspension begins 40 days after your refusal. The administrative hearings are handled by the State Office of Administrative Hearings, and can be requested online.

DWI Education Program

Individuals who are first-time offenders and are put on probation will be required to attend a DWI education program administered by the Texas Department of State Health Services. The program lasts 12 hours and educates individuals on how drugs and alcohol relate to a person’s ability to drive, their own patterns of drinking, drug use, and driving, and how they can avoid engaging in similar conduct in the future.

The course must be completed within 180 days of being placed on probation, or an offender’s license will be revoked.

DWI Intervention Program

The DWI Intervention Program is designed for repeat DWI offenders. It is 32 hours long and takes the form of an intervention into drug and alcohol abusers’ lifestyles and to encourage offenders to enter treatment. The topics covered in the program include positive thinking, lifestyle issues, values, self-esteem, the physical and psychological effects of drugs and alcohol, codependency, treatment options, prevention of relapse, and problem solving.

Offenders who do not complete the program will have their licenses revoked until it is completed.

Alcohol Education Program for Minors

As its name indicates, the Alcohol Education Program for Minors is designed for minors who have been convicted of a DWI or DUI. The program teaches its participants about the ways that alcohol can affect driving, social issues related to drug and alcohol use, and the kinds of behaviors that can lead to abuse and addiction.

In some cases, participation in the program will be substituted by court-ordered community service. Failure to complete either within 90 days can lead to a six-month license suspension.

The Mandatory Installation of an Ignition Interlock Device

In some cases, a judge will require that an offender install an ignition interlock device. In addition, the offender’s driver’s license will have a restriction indicating that he or she may only operate a vehicle with such a device installed. The device must be an approved device and be installed by an approved service provider.

Insurance and Proof of Financial Responsibility – SR-22

People who are convicted of DWI in Texas are required to prove that they have car insurance by filing an SR-22 certificate. This is done through your insurance company, and provides the state with proof that you have car insurance that complies with state minimum standards. You must have the SR-22 Certificate on file with the state for 2 years after your conviction. If it lapses, you will lose your license and the state will cancel your vehicle registration.

In addition to the SR-22 requirement, car insurers may view you as high risk after a DWI conviction. As a result, a conviction may cause your insurance premiums to significantly increase.

Commercial Drivers and DWI

Commercial vehicle drivers that get behind the wheel put us all at risk. The individuals who drive commercial vehicles often are behind the wheel of cars or trucks that are designed for highly specialized purposes. As such, they are often much larger and less maneuverable than the passenger vehicles that most of us drive. These characteristics can make them much more difficult to drive and also capable of causing serious injury if they are involved in accidents. Furthermore, commercial drivers are often entrusted with the transportation of hazardous materials or even other people.

Because of the inherent risks associated with the operation of commercial vehicles, almost every aspect of the industry is regulated by the federal government, including the licensing of commercial drivers. Under Federal Motor Carrier Safety Administration (FMCSA) regulations, a person who holds a commercial driver’s license (CDL) is subject to a .04 blood alcohol content (BAC) limit when he or she is operating a commercial vehicle. This is significantly lower than the .08 BAC limit to which non-commercial drivers are subject. In addition, CDL holders who are determined to have operated any type of vehicle under the influence of drugs or alcohol are disqualified from driving a commercial vehicle for 1 year. If the driver drives a commercial vehicle that transports hazardous materials, he or she can be disqualified for three years. Other types of offenses that may result in disqualification from driving a commercial vehicle include:

• Refusal to submit to testing;
• Leaving the scene of an accident;
• Operating a commercial vehicle with a BAC of 0.04 or more; and
• Operating a motor vehicle under the influence of a controlled substance.

CDL License Holder DWI charges and related offenses have the potential to result in significant fines, the loss of your CDL license, jail time, and in the case of commercial drivers, the inability to make a living and potentially the end of your career. As a result, it is extremely important that commercial drivers who are facing allegations of DWI discuss their options with an experienced DWI defense attorney as soon as possible.

When to Hire a DWI Attorney

A Texas DWI charge is an extremely serious matter and can result in significant legal and collateral consequences. Consequently, it is best to hire an experienced attorney as soon as you can after you are arrested for DWI. Often, the earlier an attorney becomes involved, the better the final outcome of a criminal case will be. An attorney can help you to ensure that you request an administrative hearing in order to challenge the suspension of your license, communicate with court officials on your behalf, negotiate a favorable plea agreement, and may even be able to have the case against you dropped or dismissed. Among the things to consider when hiring an attorney include:

• Whether the attorney has previous experience handling Texas DWI cases;
• Whether the attorney has successfully obtaining favorable results for other clients in similar circumstances; and
• Whether the attorney believes that that you can obtain a favorable result in your case.

Read more on how to choose a DWI Attorney by clicking here. To receive a free consultation about your case today, call our Johnson, Johnson & Baer, P.C. office at 713-257-9839.

Additional Intoxication Crimes

Boating While Intoxicated (BWI)

In Texas, a boating while intoxicated (BWI) charge carries the same penalties and license suspension consequences as does a DWI.  The state must prove the same elements in a BWI case that are required in a DWI case – a BAC over .08 percent or loss of physical or mental faculties. Your license will likewise be confiscated, and the state may attempt to suspend your Texas driver’s license.

Flying While Intoxicated (FWI)

Likewise, in a Texas flying while intoxicated (FWI) case, the same potential penalties apply as in a DWI case.  The state is required to prove beyond a reasonable doubt that the person charged with a FWI lost the normal use of his/her physical or mental faculties or had a BAC of .08 percent or above while operating an aircraft.

Assembling or Operating an Amusement Ride While Intoxicated

As with driving while intoxicated, assembling or operating an amusement park ride while intoxicated is illegal.  The government is required to prove that you assembled or operated an amusement park ride while the use of your physical or mental faculties was impaired or while your blood alcohol content was above .08 percent at the time of operation.

Applying for an Occupational License

Among the most difficult issues that many people who are convicted of DWI must deal with is the suspension of their driver’s license. While it may be tempting to simply drive while your license is suspended, it is very possible that this will exacerbate your legal troubles. Fortunately, Texas law allows people whose drivers’ licenses are suspended to apply for an occupational license, also referred to as a restricted license or a hardship license. These licenses allow people whose drivers’ licenses are suspended to drive to and from certain places during the suspension, such as school, work, or for the performance of household duties. In order to obtain an occupational license, you must:

• File a request with the court that is handling your DWI case;
• Obtain a court order for an occupational license and other supporting documents to the Texas Department of Public Safety (DPS);
• Pay a $10 fee to obtain an occupational license; and
• Pay reinstatement fees.

While the process of obtaining an occupational license may seem complicated, it is well worth it for people who have to continue driving. An experienced DWI attorney can help you through the process and make sure it goes as smoothly as possible.

Reinstate Your Texas Driver’s License

While the steps to reinstate your driver’s license are usually very clear, the process often takes a considerable amount of time and effort. These steps include the following:

• Complete any period of revocation or suspension ordered by the court;
• Pay all fines associated with your DWI, including court costs;
• Complete any sentence ordered by the court;
• Complete the Alcohol Education Program for Minors, the DWI Education Program, or the DWI Intervention Program, whichever the court orders; and
• Pay all fees associated with reinstatement.

Fees Associated with License Reinstatement and Surcharges

Getting a DWI is Texas is an expensive event. In addition to any court-ordered fines and insurance increases that you face, there are legal fees as well as additional fees to reinstate your license. For example, you must pay a $125 fee after an Administrative License Revocation in order to reinstate your license. In addition, under the Texas Driver Responsibility Program, you have to pay surcharges associated with the maintenance of your license, which can be as much as $2,000 per year for three years.