Is DWI in Texas a Felony or Misdemeanor?

Your Most Important Question

Whether your Texas DWI charge is a felony or misdemeanor charge is an important question. If police arrest you in Texas for driving while intoxicated (DWI), you have several significant concerns. And high on your list of worries is whether the police will charge you with a felony or misdemeanor. DWI felonies can carry much more serious punishments and collateral consequences than DWI misdemeanors. But DWI misdemeanors can carry severe consequences, too, including jail time, fines, suspension of your driver's license, and loss of a job, professional license, and income. What might happen when you face a DWI charge is certainly an important question.

Know, though, that a DWI arrest and charge does not necessarily mean that the court will convict you of a DWI. And even if you do suffer a DWI conviction, your punishment's severity can depend on several factors, including whether your DWI arrest is for your first or a subsequent offense, your blood alcohol level, whether your DWI injured anyone, and whether you had a child under age fifteen in your vehicle. In all of this uncertainty, your most important question may not be whether you face a felony or misdemeanor, although that question remains important. Your most important question is, instead, what you are going to do about your DWI charge.

Your best answer to your most important question when facing a DWI charge is to retain premier DWI attorney Doug Murphy for your skilled and experienced DWI defense. Attorney Murphy is one of only two Texas attorneys who are Board Certified in Criminal Law by the Texas Board of Legal Specialization and in DWI Defense by the ABA-recognized National College for DUI Defense. Houston area lawyers have voted attorney Murphy the Best Lawyers in America Houston Lawyer of the Year for DWI Defense. Call 713-229-8333 or connect with us online for the best available Texas DWI defense.

What Is Driving While Intoxicated?

Before worrying over whether you committed a DWI felony or misdemeanor, first, understand the basic DWI crime. You may not have committed a DWI crime at all. Prosecutors must establish, beyond a reasonable doubt, each element of the basic DWI crime before seeking to enhance your crime from a DWI misdemeanor to a DWI felony. Texas Penal Code Section 49.04 states simply that "a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place." Notice that the basic Texas DWI crime requires proof of several separate but closely related elements. For the basic DWI crime, the prosecution must prove (1) intoxication, (2) while operating, (3) a motor vehicle, (4) in a public place. Each of these elements implicates other laws and definitions outside of Section 49.04's straightforward language.

Definition of "Intoxicated" for a Texas DWI Charge

Texas Penal Code Section 49.01(2) provides that a person is intoxicated when "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...having an alcohol concentration of 0.08 or more." A commercial vehicle DWI lowers the .08 limit to .04. Your retained DWI defense lawyer may be able to challenge your breath and blood test results to raise a reasonable doubt about their accuracy. Your retained DWI attorney may even be able to keep out breath and blood test results because of laboratory errors or police violation of your constitutional rights.

Under Texas's definition of "intoxicated," prosecutors can charge a DWI crime regardless of your blood alcohol content if police have evidence that you didn't have the normal use of your mental or physical faculties because of alcohol or drugs. Your blood alcohol level does not have to be at or above the legal limit. But if police arrest you when your blood alcohol is below the legal limit, prosecutors may have a harder time proving the DWI charge because of the subjectivity and other problems associated with field sobriety tests. Your retained DWI defense attorney may be able to show that you were not legally intoxicated when arrested for an alleged felony or misdemeanor DWI.

Definition of a "Motor Vehicle" for a Texas DWI Charge

Texas Penal Code Section 32.34 provides that a motor vehicle "means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks." Under this definition, your vehicle need not have been street-legal. Even off-road and all-terrain vehicles may qualify as motor vehicles for purposes of a DWI charge. And other DWI statutes make operating an airplane, watercraft, or even an amusement ride DWI criminal offenses. But your DWI lawyer may nonetheless be able to show that the equipment you were operating was not a motor vehicle or other item qualifying for a felony or misdemeanor DWI charge.

Definition of "Operating" a Motor Vehicle for a Texas DWI Charge

The prosecution must also have evidence that you were operating the motor vehicle to support a Texas DWI charge. That proof may be problematic if no one saw you driving or even in the vehicle, which you may have abandoned just before your DWI arrest. That proof may also be problematic if you were only sleeping in the vehicle when arrested for a DWI. Your retained DWI defense lawyer will know whether you can successfully defend a felony or misdemeanor DWI charge on the defense that you were not operating the motor vehicle.

Definition of "Public Place" for a Texas DWI Charge

The prosecution must also have evidence that you operated the motor vehicle in a public place while intoxicated. Unfortunately, Texas courts have interpreted Texas Penal Code Section 49.04's "public place" requirement to include places to which the public has access. That interpretation means that you could suffer a felony or misdemeanor DWI conviction for a DWI arrest on private property if the public had access to that private property. Once again, your retained DWI attorney will know whether you can defeat your felony or misdemeanor DWI charge based on your location when arrested. The key may not be whether you face a felony or misdemeanor DWI charge but whether the prosecution has any DWI case at all.

Will Prosecutors Charge Me With a Felony or Misdemeanor DWI?

Whether the prosecution charges a Texas DWI as a misdemeanor or felony depends on several factors. The first of those factors involves whether you had prior DWI convictions in Texas or elsewhere. Generally, first and second-offense Texas DWIs are misdemeanors, while third and subsequent Texas DWIs are felonies.

The level of misdemeanor or felony also matters to the potential punishment. Texas classifies misdemeanors as Class A, B, or C, with Class A being the most severe misdemeanor and Class C the least severe. Class A misdemeanors carry longer jail terms, higher fines, and longer license suspensions than Class C misdemeanors. Texas classifies felonies from first degree to third degree, with first-degree felonies being the most severe, reserved for the most heinous of crimes warranting the stiffest of penalties. Below are the DWI misdemeanor and felony charge and penalty details. Keep in mind, though, that the key to your outcome may depend largely or entirely on skillful and effective advocacy rather than the offense level and minimum or maximum statutory penalties.

Penalty for a First Texas DWI

A first Texas DWI is typically a Class B misdemeanor. If prosecutors convict you of a first-offense DWI, you face a minimum of 72 hours in jail and up to 180 days in jail, up to a $2,000 fine, and suspension of your driver's license for 90 days to one year. Your retained DWI defense lawyer's advocacy can help you minimize or even eliminate these potential penalties, depending on the circumstances of your DWI charge.

Penalty for a Second Texas DWI

A second Texas DWI is usually a Class A misdemeanor, one level higher than a first-offense DWI. If prosecutors convict you of a second-offense DWI, you face jail for 30 days up to one year, a fine of up to $4,000, and a driver's license suspension of 180 days to two years. Once again, your retained DWI attorney's advocacy can help you minimize or even eliminate these potential penalties, depending on the circumstances of your DWI charge.

Third or Subsequent Texas DWI

A third or subsequent Texas DWI is a third-degree felony. If prosecutors convict you of a third or subsequent DWI offense, you face prison for two to ten years, a fine of up to $10,000, and a driver's license suspension of 180 days to two years. If prosecutors convict you of a third or subsequent DWI, and you have prior Texas criminal offenses, including offenses unrelated to DWIs, you face a second-degree felony conviction. A second-degree felony is punishable with two to twenty years in prison and up to a $10,000 fine. Once again, your retained DWI lawyer's advocacy can help you minimize or even eliminate these potential penalties, depending on the circumstances of your DWI charge.

Texas Open Container DWI

Texas also punishes operating a motor vehicle in a public place while having an open container of alcohol in the car. The open container offense is a Class B misdemeanor punished with at least six days in jail. Whether you are the driver or a passenger, having an open container of alcohol in the car is a $500 fine.

Other Circumstances Enhancing Your DWI Charge's Severity

Having prior DWI convictions is not the only way that you may face a Texas felony DWI charge rather than a misdemeanor charge. Texas law enhances DWI offense levels for several other aggravating circumstances, even if you have never previously suffered a conviction on a DWI charge.

Driving With High Blood Alcohol Content

Texas Penal Code Section 49.04(d) enhances a first-offense DWI from a Class B misdemeanor to a Class A misdemeanor when the intoxicated driver's blood alcohol content is .15% or more. If prosecutors convict you of that first-offense DWI with elevated blood alcohol, you face jail for 30 days up to one year, a fine of up to $4,000, and a driver's license suspension of 180 days to two years. A second or subsequent DWI with a blood alcohol of .15% or more enhances the penalty to a third-degree felony charge, punishable with two to ten years in prison. As in the case of multiple prior DWI offenses, your retained DWI defense attorney's advocacy may help you minimize or even eliminate these potential penalties for a high-alcohol-content DWI charge, depending on the circumstances of your case.

Texas DWI With a Child Passenger

Texas Penal Code Section 49.045 enhances the DWI charge to a state jail felony when the intoxicated driver operating a motor vehicle in a public place has a child under the age of fifteen in the vehicle. The DWI child-endangerment charge accounts for the risk of injury or worse to the child passenger. Texas law punishes a state jail felony with 180 days to two years in jail and up to $10,000 in fines. A DWI child-endangerment charge can also affect your child custody or parenting time rights in a civil proceeding for divorce or an abuse and neglect proceeding. Losing your relationship with your child could be far worse than the statutory punishment. Your retained DWI lawyer's advocacy may help you avoid losing child custody and minimize or even eliminate the potential statutory penalties, depending on the circumstances of your DWI charge.

DWI With Serious Bodily Injury

Texas Penal Code Section 49.07 enhances the DWI charge to a third-degree felony when the DWI incident causes serious bodily injury to another. To pursue this so-called "intoxication assault" charge, the prosecution must prove not only that the DWI incident involved a serious injury but also that the DWI defendant's intoxication was the injury's cause. The prosecution must also prove that the injury meets the statutory definition in that it creates a substantial risk of death, permanent disfigurement, protracted impairment, or loss of a bodily member or organ. Texas law punishes a third-degree felony with a prison sentence of two to ten years and up to a $10,000 fine. Intoxication assault becomes a second-degree felony if the accident causes a traumatic brain injury resulting in a persistent vegetative state. A second-degree felony increases the maximum punishment to twenty years.

DWI With Serious Bodily Injury to Certain Persons

Texas Penal Code Section 49.09(b-1) further enhances the intoxication assault penalty from a third-degree felony to a second-degree felony when the intoxication causes serious bodily injury to a firefighter or emergency medical personnel acting in the discharge of their official duties. The second-degree felony increases the maximum prison sentence to twenty years. Texas Penal Code Section 49.09(b-1) further increases the penalty to a first-degree felony punishable by prison for not less than five years nor more than 99 years, if the DWI defendant's intoxication causes serious bodily injury to a peace officer or judge acting in the discharge of their official duties.

DWI Causing Death

When a person dies from the DWI defendant's intoxication, Texas Penal Code Section 49.08 enhances the DWI charge, identified as "intoxication manslaughter," to a second-degree felony. Texas law punishes a second-degree felony with a minimum of two and maximum of twenty years in prison and up to a $10,000 fine. Once again, your retained DWI defense attorney's advocacy may be able to help you minimize or even eliminate these potential penalties, depending on the circumstances of your DWI charge. A DWI charge, whether felony or misdemeanor, is not the same as a DWI conviction. Beat the DWI charge, and you avoid the statutory penalties.

Additional Texas DWI Penalties

Beyond the above jail or prison time, fines, and loss or suspension of your driving privileges, you can face additional Texas DWI penalties. If you refuse to submit to a breath or blood test to measure your blood alcohol, you may lose your license for a minimum of 180 days. The driver's license suspension may increase to up to two years if you have another alcohol or drug-related law enforcement contact within ten years. After two or more DWI convictions, you must install and pay for an ignition interlock device that prevents your car from starting if the device detects alcohol on your breath. You may also have to attend and pay for DWI intervention or education programs.

Collateral Consequences of a Texas DWI Conviction

Whether you face a misdemeanor or felony Texas DWI charge, any DWI conviction can have serious collateral consequences. The first and greatest potential consequence would be an effect on your child custody, especially if you had a child in your motor vehicle when arrested on your DWI charge. That risk highlights that collateral consequences can even have more severe impacts than any jail time, fines, or loss of your driver's license. With a DWI conviction of any kind, you could lose your job, especially if your job involves driving or caring for children. A DWI conviction could also affect your educational program and your eligibility for financial aid. You could find it hard to rent an apartment or get a mortgage or other loans. With a felony conviction, you can lose your ability to vote and your right to own a firearm. You may also lose your ability to hold public office. You may also be unable to hold a security clearance or work for law enforcement agencies or the military.

Collateral consequences can be especially severe for licensed professionals whose jobs and careers depend on maintaining the confidence of licensing officials. You won't be able to conceal your DWI conviction and should generally not try. Criminal convictions, whether felony or misdemeanor, appear on criminal background checks by the FBI, state agencies, public and private employers, and others with an interest in your good character and qualifications. Concealing your DWI conviction could make professional license discipline more serious than it otherwise might have been.

Contact Our Houston, Texas Misdemeanor and Felony DWI Lawyer

Premier Board Certified DWI attorney Doug Murphy is available for your DWI defense, whether you face a felony or misdemeanor DWI charge. Attorney Murphy is one of only two Texas attorneys who are Board Certified in Criminal Law by the Texas Board of Legal Specialization and in DWI Defense by the ABA-recognized National College for DUI Defense. Houston area lawyers have voted attorney Murphy the Best Lawyers in America Houston Lawyer of the Year for DWI Defense. Call 713-229-8333 or fill out an online contact form now for the best available DWI defense. Your best move is to retain the best available DWI lawyer, no matter the level or nature of your Texas DWI charge.