A third DWI in Texas is a third-degree felony. The range is 2 to 10 years in prison and a fine up to $10,000 (Penal Code §§ 49.09(b)(2), 12.34). There’s no lookback period, so two DWIs from 20 years ago can turn a new arrest into a felony, and a DWI deferred adjudication counts as one of them (§ 49.09(g)). One earlier conviction for intoxication manslaughter is enough by itself (§ 49.09(b)(1)). The case gets indicted by a grand jury and goes to a Harris County felony court, and deferred adjudication isn’t available at all (Code of Criminal Procedure Art. 42A.102(b)(1)(C)). But those two prior convictions are part of what the State has to prove, and they’re where we start. If one of them falls and the State has no other prior to put in its place, the case isn’t a felony anymore.
Call (713) 664-4000. You have 15 days to request a hearing on the license suspension, and on a third DWI the bond conditions start before you’re even out of jail.
What happens right after a third DWI arrest
On any repeat DWI, the magistrate has to order an ignition interlock as a condition of bond unless requiring it would not be in the best interest of justice, and you have 30 days from release to get it installed (Art. 17.441). Felony bonds are also higher than misdemeanor bonds, and the conditions often include no alcohol and alcohol monitoring on top of the interlock. Your license faces an administrative suspension that runs separately from the criminal case. With an alcohol- or drug-related enforcement contact in the past 10 years, it’s one year for a failed test and two years for a refusal (Transportation Code §§ 524.022, 724.035). You only get a hearing on it if you ask within 15 days. See our page on the ALR hearing.
If you refused a test, you probably still gave blood. The Transportation Code tells officers to take a specimen when a person with two earlier DWIs refuses (§ 724.012(b)(3)(B)), but the Court of Criminal Appeals held in State v. Villarreal (2014) that the statute alone doesn’t justify a draw without a warrant. In Harris County the officer usually gets a warrant, so we read the affidavit behind it. A warrant built on boilerplate, or on facts the video contradicts, is something we challenge.
Penalties for a third DWI
| Consequence | Third DWI |
|---|---|
| Prison | 2 to 10 years (§ 12.34) |
| Fine | Up to $10,000, plus a separate state fine on conviction of $3,000, or $4,500 if it’s your second or later DWI conviction within 36 months, or $6,000 if a test showed 0.15 or more. The judge has to waive the state fine if you’re indigent (Transp. Code § 709.001) |
| License suspension on conviction | 180 days to 2 years, and at least 1 year if this offense was committed within five years of your last DWI offense (Transp. Code § 521.344). Different rules can apply on probation |
| Ignition interlock | Required on bond unless the magistrate finds it’s not in the interest of justice (Art. 17.441), and required as a condition of probation (Art. 42A.408(c)(2)). If this offense came within five years of the last one, a conviction also means an interlock for a year after the suspension ends (Penal Code § 49.09(h)) |
| Probation | 2 to 10 years, with at least 10 days in county jail as a condition (Art. 42A.053, 42A.401(a)(3)) |
| Deferred adjudication | Not available (Art. 42A.102(b)(1)(C)) |
Probation is possible on a third DWI, and a lot of people get it. A judge can grant it. So can a jury, if you’ve never been convicted of a felony and the sentence is 10 years or less (Art. 42A.055, 42A.056). That’s one reason we sometimes want the jury, not the judge, deciding punishment. But a felony conviction is permanent. It can’t be sealed, and short of a pardon it can’t be expunged. It limits your right to have a gun under state law (§ 46.04(a)) and bars it under federal law (18 U.S.C. § 922(g)(1)), and the next DWI is a felony too.
It can get worse than the third-degree range. The two priors that make this a felony can’t be used again to enhance it further (§ 49.09(g)). But a separate prior felony can, including an earlier felony DWI, if it’s a final conviction (a sentence actually served, or probation that was revoked) and not a state jail felony. One more final prior felony makes the case punishable as a second-degree felony, 2 to 20 years (§ 12.42(a)). Two earlier final felonies in sequence can mean 25 years to life (§ 12.42(d)). That’s how a fourth or fifth DWI ends up with a prison range that looks like a violent crime’s, and it’s why we pull every prior judgment before we talk about any offer.
Attacking the priors
The two earlier convictions are elements of the felony, and the State has to prove them. That means a valid judgment for each one and proof that you’re the person named in it. With old cases, that isn’t always easy. Fingerprints are missing from some judgments, names get spelled differently, some records don’t survive, and a plea taken without a lawyer needs a valid waiver of counsel to count. A probated DWI counts as a final conviction if the offense happened on or after January 1, 1984, even if probation was never revoked (§ 49.09(c), (d)). A probated DWI from before 1984 that was never revoked may not count at all. An out-of-state DUI counts if that state’s law prohibits driving while intoxicated (§ 49.09(c)(1)(F)), but the State still has to prove the out-of-state judgment is final and that it’s yours. Old out-of-state records are often the weakest part of the State’s case.
If the State can prove only one prior, the case drops to a Class A misdemeanor (§ 49.09(a)). Prison comes off the table, jail tops out at a year, and probation is still available. Getting there is often worth more than any plea offer on the felony. See our page on second DWI charges for what that case looks like.
Attacking the new arrest
A felony DWI is still a DWI, and it’s won or lost on the same evidence. The stop. If the officer didn’t have reasonable suspicion to pull you over, what came after it can be suppressed (Art. 38.23). The field sobriety tests. Jay Blass Cohen is a certified instructor in the standardized field sobriety tests and a certified Drug Recognition Expert, and he knows what a bad administration looks like on the video. The blood test. Jay is an ACS-CHAL Forensic Lawyer-Scientist trained in forensic chromatography. We read the lab’s raw data and chain of custody, not just the number on the report. The video. Body camera and dash camera footage often doesn’t match the report, and when it doesn’t, we make sure the judge or jury sees it.
Results in felony DWI cases
A Harris County client charged with DWI third, with a 0.128 blood test that also showed alprazolam and a record as a habitual offender, was stopped for failing to signal a turn. He’d failed every field sobriety test. The judge granted our motion to suppress and the case was dismissed (with co-counsel). A Montgomery County felony DWI third with a 0.471 blood test was dismissed. And a Montgomery County DWI third with a 0.116 breath test was reduced to a first offense. See more of our case results. Prior results do not guarantee a similar outcome.
Charged with a third DWI in Houston? Call Blass Law
Jay Blass Cohen has defended DWI cases in Houston since 2009 and has never worked for the prosecution. On a third DWI we go after the priors and the new arrest at the same time, because beating either one changes the whole case. For more, see our Houston DWI defense page.
Call (713) 664-4000. If you were arrested this week, call now, before the 15-day license deadline runs.
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.