Texas DWI Law

WARNING! There is a new law that passed in Texas this year and it became effective September 1, 2003. It will affect all DWI convictions for arrests that occurred on or after this date: In addition to fines and court costs, the Texas legislature has now imposed a "surcharge" for persons arrested and convicted of DWI on or after September 1, 2003. The surcharge will be assessed as follows:

DWI & "Intoxication" under Texas Law:

Driving while intoxicated, first offense, is a Class B Misdemeanor that is defined at Texas Penal Code §49.04. That provision states that, " A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place". This definition sets forth the elements that must be proven to sustain a conviction. Those elements are:

- The defendant, on or about a particular date - Was operating a motor vehicle - In a public place (street, highway, beach, parking lot, etc) - In a particular county - While intoxicated

The Texas legislature has specifically defined the term "intoxication", as that term is used for prosecution of DWI cases {Texas Penal Code §49.01(2)}. There are two definitions to encompass those who do or do not submit to chemical testing:

1) "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

2) "having an alcohol concentration of 0.08 or more."

It is important to note that the law provides for intoxication by the introduction of any intoxicating substance into the body. This is designed to make our roadways safe from dangerous drivers. Typically, proof at trial is restricted to alcohol unless some statements or other indications suggest that the driver has become impaired by some other substance. It is important to note that being on prescription drugs is not a defense to a DWI prosecution. If the label suggests that ingestion will impair one's ability to operate a motor vehicle or machinery, taking such medicine and driving may subject you to DWI arrest and conviction. At trial, the State therefore may prove intoxication in three (3) different ways:

- not having the normal use of physical faculties OR
- not having the normal use of mental faculties OR
- having an alcohol concentration of 0.08 or more.

The jury does not have to be unanimous on the manner and means of intoxication, only that the person was intoxicated. It is also important to note that intoxication must occur and be proven to occur while driving.

Many other States provide for prosecution of a "lesser included" offense other than DWI (i.e. reckless driving, impaired driving, driving under the influence, etc.). Texas however has no lesser included offense of DWI. Some counties offer plea bargain agreements to other charges than DWI, but they are the exception and not the rule.

Classifications & Range of Punishment for DWI Conviction

DWI, 1st Offense: Class B Misdemeanor.

Fine: A fine not to exceed $2,000.00.
Jail: Confinement in the County Jail for a term of
not less than 72 hours nor more than six (6) months.

Open Container:If there was an open container of alcohol in your car when arrested, the minimum term of confinement is six (6) days in the county jail.

Community Service:Texas law mandates that a judge order not less than 24 hours nor more than 100 hours.

Absent unusual facts, most persons convicted of a first offense DWI are granted community supervision ("probation") of any confinement ordered. The general length of DWI probation is two years. There are also conditions of community supervision ordered that are fairly standard in most courts. Typical conditions imposed are:

Drug/Alcohol Evaluation. A person convicted of DWI will be required to submit to evaluation for probability of committing DWI in the future and/or to disclose a potential problem with alcohol or drug abuse. If a problem is detected, additional terms and conditions of probation are ordered to be administered through the Community Supervision Department.

Attend and complete an approved DWI Education class within 180 days from the date of conviction (Satisfying this requirement will avoid the one (1) year drivers license suspension, unless if you were a minor (under 21) at the time of the offense.)

Attend and complete a M.A.D.D. Victim Impact Panel. This is a forum presented by M.A.D.D. that presents victims of drunk drivers to address persons convicted of DWI and warn of the dangers and perils of driving while intoxicated.

Work faithfully at suitable employment, commit no other crimes, remain at the same residence and employment unless notification is given to the community supervision officer, report monthly to the supervision office, pay all fines and costs in a timely manner.

Pay a monthly supervisory fee of $25.00 - $40.00.

Perform a specified hours of community or volunteer service NOTE: If convicted, you will be given an Order Granting Probation. This Order will be specific and unique to your case and fully sets forth the terms and conditions of your probation which apply to you. It is the blueprint for your probation.

Additional Conditions of Probation that may be Ordered:

If your case presents unusual facts (accident, alcohol problem, prior alcohol contacts, bad driving record etc.), additional conditions may be ordered. Most conditions are designed to address a problem that appears from the facts or alcohol/drug evaluation that is performed on the subject after conviction. Again, a specific order is given after each conviction. The following list is only a general discussion of conditions that have been imposed in some DWI cases in my experience and may not apply to you.

Deep lung air device: Some counties (Collin & Denton) are requesting this condition for all DWI probations. This provision requires that you install and maintain a device on any car which you intend to drive during probation. The device requires a breath sample before it will allow your car to start. Some devices require periodic breaths while driving. This condition is recommended after a unfavorable drug/alcohol evaluation.

Alcohol Treatment: Attendance at AA or other counseling programs offered through the probation department. In extreme cases outpatient programs may be ordered. This condition is recommended after a unfavorable drug/alcohol evaluation.

Consume no alcohol: Some courts require that a person not consume any alcohol during probation. This provision is monitored by periodic and random urinalysis at the probation office. This condition is recommended by particular judges in North Texas.

Confinement: Again, in some extreme circumstances, the Court may order that a DWI offender serve confinement in the county jail as a condition of probation.

Restitution: If there was an accident followed by a DWI arrest, and if your insurance company has not paid damages to the other party, restitution of any unpaid amounts will be ordered by the Court as a condition of probation.

Enhanced Penalties: (Prior alcohol or drug related criminal history)

Under Texas law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after conviction are increased or enhanced. The prior DWI conviction must have occurred within ten (10) years of the present arrest for DWI. Additionally, if a person has any prior DWI conviction within the previous ten year period (measured from dates of arrest), the State is then allowed to use any prior DWI conviction since obtaining a drivers license to enhance the accusation to a DWI, third offense. NOTE: Texas can use prior convictions that have occurred in other states for enhancement of punishment.

DWI, Second Offense: Class A Misdemeanor Special Condition for Jail Release on Bond: It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law now requires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install and maintain a deep lung air device on the car that the person intends to drive and operate while charges are pending. The device requires a breath sample before it will allow you to start your car. They also require periodic breaths while driving to monitor and insure sobriety. New technology has made these devices "user sensitive" so that someone else cannot blow into the device for the driver. Although this provision seems to run afoul of the presumption of innocence, Texas Courts have consistently held that such condition is necessary to protect a legitimate governmental interest in making public roadways safe for the motoring public.

Fine: A fine not to exceed $4,000.00.
Jail: Confinement in the County Jail for a term of
not less than 72 hours nor more than one (1) year.

Community Service: Texas law mandates that a judge order not less than 80 hours nor more than 200 hours.

Deep lung air device: Typically deep lung devices are required for all DWI second offenders during probation.

Suspension of license: A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.

DWI, Third Offense (or greater): Third degree FELONY

Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years.

Deep lung air device: Deep lung air devices are generally ordered on all persons convicted of three or more DWI's both as conditions of bond and as conditions of any occupational or provisional licenses that may be awarded after conviction.

Community Service: Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

Suspension of license: A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.

Other: A third conviction for DWI indicates a significant problem with alcohol to the Court or jury assessing punishment. Some type of rehabilitative treatment is therefore mandated in punishment if confinement in the penitentiary is to be avoided. In some cases an in-patient, incarceration program (Substance Abuse Felony Probation SAFP) is ordered. This program requires confinement in a State Facility for alcohol rehabilitation. After successful completion of the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.

Another popular condition for habitual DWI offenders is a prescription for a drug named "Antibuse". This drug will make a person violently ill if any alcohol is consumed. The alcohol can be contained in mouthwash or marinated food and will still have the same effect on the user. If a person has any type of liver problems, this drug can cause liver failure and death.

Texas law does not provide for any increased punishment after DWI, third offense. If a person presents a DWI, fourth offense or beyond, the typical punishment is confinement in the penitentiary from two (2) to ten (10) years without probation being granted. In some cases SAFP or "Shock Probation" may be granted upon proper request and showing that it is appropriate.

Intoxication Assault: Third degree Felony

"A person commits an offense if the person, by accident or mistake, while operating a .... motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another" {Texas Penal Code §49.07}.

" 'Serious Bodily Injury' means injury that creates a substantial risk of death or protracted loss or impairment of the function of any bodily member or organ".

Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years.

Community Service: Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

Intoxication Manslaughter: Second Degree Felony

"A person commits an offense if the person:
1)...operates a motor vehicle in a public place, and...
2)...is intoxicated and by reason of that intoxication causes the death of another by accident or mistake."

Fine: A fine not to exceed $10,000.00.
Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than twenty (20) years.

Community Service: Texas law mandates that a judge order not less than 240 hours nor more than 800 hours.

NOTE: If a person is involved in an accident where there is risk of death or death, a mandatory blood sample will be taken for analysis and use in the prosecution of either Intoxication Assault or Intoxication Manslaughter.