Want to know more about Texas and Houston DWI laws? Below, you’ll find a brief overview of Texas DWI facts, your rights, and actual excerpts of the DWI law in Texas according to our Houston DWI lawyers at Blass Law.
What is DWI in Texas?
According to our Houston criminal defense lawyers, DWI stands for “driving while intoxicated.” Texas law defines intoxication as “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 (b) having an alcohol concentration of .08 or more.” “Alcohol concentration” means the number of grams of alcohol per: (a) 210 liters of breath; (b) 100 milliliters of blood; or (c) 67 milliliters of urine.
What that means is, in Texas, a person is driving while intoxicated when:
- They are operating a motor vehicle in a public place and they have lost the normal use of their mental faculties or physical faculties; or
- They have an alcohol concentration of 0.08 or greater.
DWI Punishment and Penalties in Texas
| Offense | Offense level | Maximum fine | Confinement | Driver’s license suspension |
| DWI, first offense (§ 49.04(b)) | Class B misdemeanor | Up to $2,000 | 72 hours to 180 days in county jail | 90 days to 1 year |
| DWI, first offense with an open container (§ 49.04(c)) | Class B misdemeanor | Up to $2,000 | 6 days to 180 days in county jail | 90 days to 1 year |
| DWI with an alcohol concentration of 0.15 or more (§ 49.04(d)) | Class A misdemeanor | Up to $4,000 | Up to 1 year in county jail, no statutory minimum | 90 days to 1 year |
| DWI in a school crossing zone (§ 49.04(e)) | State jail felony | Up to $10,000 | 180 days to 2 years in state jail | 90 days to 2 years |
| DWI with a child passenger younger than 15 (§ 49.045) | State jail felony | Up to $10,000 | 180 days to 2 years in state jail | 90 days to 2 years |
| DWI, second offense (§ 49.09(a)) | Class A misdemeanor | Up to $4,000 | 30 days to 1 year in county jail | 180 days to 2 years |
| DWI, third or later offense (§ 49.09(b)) | Third degree felony | Up to $10,000 | 2 to 10 years in prison | 180 days to 2 years |
| Felony DWI with one prior felony conviction (§ 12.42(a)) | Punished as a second degree felony | Up to $10,000 | 2 to 20 years in prison | 180 days to 2 years |
| Felony DWI with two prior felony convictions (§ 12.42(d)) | Habitual offender punishment | Up to $10,000 | 25 to 99 years or life in prison | 180 days to 2 years |
| Intoxication assault (§ 49.07) | Third degree felony | Up to $10,000 | 2 to 10 years in prison | 180 days to 2 years |
| Intoxication assault causing a traumatic brain injury with a persistent vegetative state, or serious bodily injury to an on-duty firefighter or EMS provider (§ 49.09(b-1)(1), (b-4)) | Second degree felony | Up to $10,000 | 2 to 20 years in prison | 180 days to 2 years |
| Intoxication assault causing serious bodily injury to an on-duty peace officer or judge (§ 49.09(b-1)(2)) | First degree felony | Up to $10,000 | 5 to 99 years or life in prison | 180 days to 2 years |
| Intoxication manslaughter (§ 49.08) | Second degree felony | Up to $10,000 | 2 to 20 years in prison | 180 days to 2 years |
| Intoxication manslaughter of an on-duty peace officer, judge, firefighter or EMS provider (§ 49.09(b-2)) | First degree felony | Up to $10,000 | 5 to 99 years or life in prison | 180 days to 2 years |
Two things the table cannot show you. The fine is a ceiling, not a sentence, and most first offenses do not come close to it. And an enhancement only counts if the State pleads and proves the prior, which is where a lot of these cases actually get fought.
A note on intoxication manslaughter. The official code currently prints two competing versions of Section 49.09(b-2), both on the books, and they do not say the same thing about what bumps the offense to a first degree felony. One version reaches a death caused during the same criminal transaction as another death. The other reaches a defendant with a prior intoxication conviction who was in violation of Chapter 51 at the time. If your case is anywhere near that line, which version the State relies on matters, and we will go through the charging instrument with you line by line.
Boating while intoxicated has its own page, because the penalties are not identical to DWI. Section 49.06 carries no 0.15 enhancement and no open container enhancement, which you will see stated incorrectly on a lot of Texas law firm sites. Flying while intoxicated (Section 49.05) and operating or assembling an amusement ride while intoxicated (Section 49.065) are real offenses too, both Class B misdemeanors with a 72-hour minimum, and both enhance the same way a DWI does.
First DWI Offense
- Fines up to $2,000
- Jail time of 72 hours to 6 months
- License suspension of 90 days up to one year
First Offense (BAC Equal or Greater Than 0.15)
- Fines up to $4,000
- Jail time of up to one year, with no statutory minimum
- License suspension of 90 days up to one year
Second DWI Charge
- Fines up to $4,000
- Jail time of 30 days to one year
- License suspension of 6 months to two years
Third DWI Offense
- Fines up to $10,000
- Jail time of 2 years to 10 years
- License suspension of 6 months to two years
DWI Driving with a Child Passenger (Younger Than 15)
- Fines up to $10,000
- State jail time of 180 days to two years
What Must Be Proven for Me to Be Convicted of DWI in Texas?
The state must prove beyond a reasonable doubt that you were operating a motor vehicle in a public place while intoxicated. For the state to prove you are intoxicated, it must present evidence to convince a jury beyond a reasonable doubt, to show you did not have the normal use of your mental or physical faculties or that you had an alcohol concentration of 0.08 or more.
I was Arrested for DWI: Does that Make Me Guilty?
No! Just because an officer brought you in for driving while intoxicated, it doesn’t automatically make you guilty. People are wrongly arrested for DWI all the time. An officer only needs probable cause to make an arrest. A jury must have proof beyond a reasonable doubt to convict someone of DWI.
Remember, a DWI arrest is based on an officer’s opinion, and there are two sides to every story. We’ll go through your case in detail and give you a second opinion, so your rights are protected and you don’t get the short end of the stick. Jay Cohen is a certified practitioner and instructor of Standardized Field Sobriety Tests.
Do I Have to Tell the Officer if I Have Been Drinking?
You do not have to tell the officer if you have been drinking. You don’t have to tell the officer anything other than your name and date of birth. You can just hand the officer your driver’s license. Once you have done that, you don’t have to tell them anything else, and you shouldn’t tell them anything else. Less is more.
What Happens when You Get Pulled Over for DWI in Texas?
A DWI stop usually starts like any other traffic stop. The officer pulls you over and asks for your license and registration. You know it’s about to go downhill when the officer asks if you’ve been drinking. Next, the officer will probably ask you to step out of the car and do some field sobriety tests.
Do I have to Perform the Standardized Field Sobriety Tests?
No, you do not have to perform the field sobriety tests. These tests consist of at least three tests: the horizontal gaze nystagmus test (or HGN), the walk and turn test, and the one-leg stand. These are difficult things to do, even more so if you’ve never practiced them and you’re nervous. Performing these tests can make you look drunk even if you haven’t been drinking. You can refuse to do these tests.
Can I Refuse a Breathalyzer Test?
YES! If you are pulled over in Texas and a police officer suspects you are intoxicated, they will ask you to give a breath or blood sample. You can absolutely refuse to consent to a breathalyzer or breath test sample. If you refuse to give a breath sample, the officer may apply for a warrant to take a blood sample. If the officer gets a warrant signed by the judge, don’t fight with them.
If there are any issues with the warrant, we will fight those in court. A warrant that isn’t valid cannot be used in court. This means any evidence obtained as a result of the invalid warrant cannot be used at trial.
Can I Refuse a DWI-Related Blood Test?
YES! If a police officer requests a voluntary blood sample in Texas, you can refuse to give it to them. Frequently, the police go to a judge and get a search warrant for your blood. If the police get a search warrant for your blood, they can use whatever reasonable means necessary to get the blood out of your body. When the police have a search warrant, it is not a good idea to fight them. They have guns, and they’re probably going to win.
Can I Save My Driver’s License From Suspension After Being Arrested for DWI?
Maybe, but you have to act fast. You have only 15 days from the date you receive your notice of suspension to request an Administrative License Revocation (ALR) hearing from the Texas Department of Public safety to save your license.
When Should I Hire a Houston DWI lawyer?
Now! You don’t have time to waste after a DWI arrest. Remember, you only have 15 days to request a hearing to save your license. If you miss that deadline, there’s nothing that can be done to fight your license suspension. Schedule your case evaluation today!
Could a Breathalyzer test Result Be Inaccurate?
Yes. There are a lot of physiological factors that cause breathalyzers to inaccurately measure a person’s blood alcohol concentration (BAC). There are many different types of breathalyzers that use different methods to measure a person’s BAC. Frequently, these devices give a reading that is not an accurate reflection of a person’s BAC.
A lawyer may be able to prove that the device gave an inaccurate measurement. They can use this information to show a jury just how much can go wrong with a breathalyzer in a trial.
Will a DWI conviction show up on my permanent record?
Maybe. If you get convicted of DWI, you may be eligible for a nondisclosure. A conviction could even prevent you from getting that dream job. For juveniles accused of DUI, it can prevent you from getting into the college of your choice or participating in extracurricular activities. A Houston underage DUI lawyer can fight against these charges.
Will I have an Ignition Interlock or Breathalyzer as a Bond Condition?
The court will likely require a breathalyzer as a condition of bond if you have a previous DWI conviction. Some Harris County courts require a breathalyzer while on bond for a first-offense DWI. Usually, for your first offense, a breathalyzer is only required as a condition of bond if there is an accident or a high breath or blood test.
Can I Drive a Car Without an Ignition Interlock if I have a Bond Condition Requiring an Ignition Interlock or Breathalyzer?
No, not on your own. An interlock bond condition is a court order, and it bars you from driving any vehicle that doesn’t have the device. The employer-vehicle exception people point to, Texas Transportation Code §521.246(e), covers an occupational license restricted to an interlock. It doesn’t override a judge’s bond order. If your job means driving a company vehicle, we can ask the judge to modify the bond so you can. Until that order is signed, driving without the device is a bond violation, and a bond violation can put you back in jail.
Could Being on the Keto Diet Have an Impact on My Breath Test?
Yes! Being on the keto diet, or being in ketosis, can have an impact on your breath test result. Ketosis causes a person’s body to create acetone. Acetone then converts to isopropyl alcohol. When isopropyl alcohol is combined with ethyl alcohol, breathalyzers can read the two together and give a falsely elevated reading.
According to the International Journal of Obesity, a man on the keto diet was unable to start a car equipped with an alcohol ignition interlock device. Your lawyer can investigate your case to determine if your result was a false positive. Then, they can use this information to protect your rights when evidence is presented to the court.
What is the Punishment for a DWI First Offense in Texas?
In Texas, a first-offense DWI punishment is up to 180 days in the county jail, up to a $2,000 fine, and potentially a license suspension from 90 days to one year.
What is the Punishment for a DWI First Offense with a BAC Over 0.15 in Texas?
In Texas, a first-offense DWI punishment with a BAC greater than 0.15 is up to one year in the county jail, up to a $4,000 fine, and potentially a license suspension from 90 days to one year.
Will My License Be Suspended if I am Convicted of a First-Offense DWI in Texas?
If you are convicted of a DWI in Texas and it is the first offense, your license is only suspended if the sentence is not probated. So if you are sentenced to probation, your license will usually not be suspended by the court. However, if you are sentenced to jail time, even if you don’t go to jail and receive credit for time served, your license will be suspended for a period of 90 days to one year.
What is the Punishment for a Second DWI Conviction in Texas?
In Texas, the punishment if you are convicted of a second offense DWI is up to one year in the county jail, up to a $4,000 fine, and a license suspension from 180 days to two years.
Can I Expunge a DWI From My Record?
It depends on what the outcome was. If the case was dismissed or you were found not guilty at trial, you are eligible for an expunction. Once we take a look at your case, our Houston criminal record expungement lawyer can help you determine if expunction is one of your legal options.
How do I Seal a DWI Conviction From My Record?
DWI convictions in Texas can be sealed from your record. A few elements must be met:
- The petitioner must not have been convicted of any other offense.
- The breath or blood test results must be below 0.15.
- There can not be an accident that involves another person.
The filing is called a petition for nondisclosure. Contact Houston Nondisclosure lawyer today and we can help you through the whole process quickly.
Call the Attorneys at Blass Law for Help
A DWI can negatively affect your career and personal life. After being charged with one, you may feel like there is nothing you can do to fight it, but this is not the case. You never know what you will discover about your case until you consult a law firm.
At Blass Law, we can discuss your case and the benefits of working with our Houston DWI lawyer. See what our firm can do for you. You have nothing to lose by taking advantage of our consultation. We will work hard to get your DWI charges dismissed.
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.