Felony Driving While Intoxicated: When Is DWI a Felony in Texas?

January 16, 2024 | By Fulgham Hampton Criminal Defense Attorneys
Felony Driving While Intoxicated: When Is DWI a Felony in Texas?

A driving while intoxicated (DWI) conviction is life-changing no matter whether it is charged as a misdemeanor or a felony. You will face long probationary periods, suspension of your driver’s license, and the long-term consequences of having a criminal record. Of course, all crimes are more complicated and serious when they are felonies. So, when is a DWI a felony in Texas? Let's review the DWI laws in Texas to better understand how a felony DWI can impact your future.

When a DWI is charged as a felony-level offense, the potential consequences are much more severe. A felony DWI in Texas carries the potential for a longer incarceration sentence and a higher fine. Importantly, if you are a convicted felon, your future freedom, livelihood, and relationships are at stake.

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A Felony DWI in Texas Involves Two Procedures: Criminal Charges and Driver's License Suspension

Regardless of whether your DWI charge is filed as a misdemeanor or felony criminal case, in the days following your DWI arrest, the Texas Department of Public Safety begins a separate process that affects your driver's license. Before your DWI criminal case is resolved, your driver's license will be suspended, and you will lose your right to drive unless you request a hearing.

Under Texas law, you have 15 days from the date of your arrest to request a driver’s license hearing from the Texas Department of Public Safety. If you fail to file this request within the first 15 days after your arrest, your Texas driver’s license will be automatically suspended. This suspension takes effect 40 days after the date of your arrest unless you successfully fight the suspension at a hearing.

Many people don't realize these two processes are happening at the same time. If you have been arrested for a DWI in Texas, make sure you note the 15-day deadline date and reach out to a local Texas attorney as soon as possible to help you preserve your right to an administrative license revocation hearing. If you miss this deadline, you cannot fight your Texas driver’s license suspension.

Let's take an in-depth look at when is a DWI offense charged as a felony in Texas and what potential criminal penalties you may face.

When Is a DWI a Felony in Texas?

In general, a DWI is charged as a felony if you have been previously convicted of at least two prior misdemeanor DWI offenses. However, under certain circumstances, you can be charged with a felony DWI in Texas, even if this arrest in only a first or second DWI offense. To learn more about your specific charges and potential penalties, consult with an experienced Texas DWI attorney today.

Here is a breakdown of several potential situations that may lead to a felony DWI in Texas and the range of possible penalties:

Intoxication Assault: 2-10 years of state imprisonment and fines up to $10,000

If you injure another motorist or a pedestrian while driving intoxicated, you can be charged with a third-degree felony, even if this charge is your first or second DWI offense. To be convicted of intoxication assault, the alleged intoxication must be the direct cause of the victim's injury.

In other words, the State of Texas must prove beyond a reasonable doubt that the other person's injury was caused by the intoxication. If the State cannot prove this critical element beyond a reasonable doubt, the prosecution should reduce the felony charge to a lesser offense of misdemeanor DWI.

Understanding the Role of the Grand Jury

An experienced Texas DWI lawyer should explain how you may be able to challenge your charges through the grand jury process. A grand jury is a panel of citizens charged with reviewing evidence and determining if a criminal case exists. If you have been charged with Intoxication Assault, your DWI attorney should review the evidence thoroughly to determine if evidence should be submitted to the grand jury to fight your case.

For example, if the evidence shows that someone was injured but the DWI crash report indicated that the injury was caused by the victim running into the street, this information could be used to show the driver's intoxication was not the legal cause of the injury. In this situation, the charges could be reduced to a lesser charge of DWI.

Intoxication Manslaughter: 2-20 years of state imprisonment and fines up to $10,000

If another motorist, pedestrian, or passenger dies while you are driving while intoxicated, you could be charged with intoxication manslaughter. Intoxication manslaughter is a second-degree felony.

Similar to intoxication assault, intoxication manslaughter requires proving that intoxication was the actual cause of the victim's death. If the prosecution cannot prove this link, a jury should enter a not guilty verdict if your case goes to a jury trial. Additionally, your DWI attorney could gather and present evidence to the grand jury and request the case be dismissed or reduced to a lesser charge of misdemeanor DWI.

DWI with Child Passenger: 180 days to 2-year jail sentence and fines up to $10,000

If you are transporting a child passenger (under the age of 15) when you are arrested for DWI in Texas, you can be charged with DWI with a child passenger. Under Texas law, the felony charge of DWI with a child passenger is the same as a misdemeanor DWI in every way except for the fact a child is in the car at the time of the arrest. DWI with a child passenger is considered a State jail felony.

Third or More DWI Offense: 2-10 years of state imprisonment and fines up to $10,000

The third DWI offense is taken much more seriously than prior offenses. A third DWI is charged as a third-degree felony. In order to prove this charge, the prosecution must be able to show at least two prior DWI convictions. Prior DWI charges that resulted in probation, community service, or other non-conviction agreements do not qualify as convictions.

To challenge this felony charge, a skilled DWI lawyer will examine the paperwork associated with your prior DWI convictions to see if they can be used in court. For example, some of our prior DWI clients had prior DWI convictions in small Texas counties several years ago. Many small counties in Texas only keep records for a limited number of years and have not converted them to a digital format. As a result, the prior conviction records may not be available to support a felony DWI charge.

Never assume the State of Texas has the actual records to prove these charges. A tenacious DWI lawyer may learn these records are no longer available, which gives you leverage for a better resolution of your pending felony DWI case. In fact, if the State of Texas is unable to produce the prior records of convictions, your felony DWI case may be reduced to a misdemeanor DWI charge, saving you thousands of dollars in fines and fees and avoiding the prospect of prison or a lengthy probation sentence.

Third or More DWI Offenses with Prior State Imprisonment: Imprisonment depends on the number of prior prison sentences and fines up to $10,000

If an offender is convicted of a third or more DWI and has previously been incarcerated in Texas State Prison for any offense, the DWI can be charged as a second-degree felony. The potential term of additional imprisonment is dependent on how many prior sentences the offender has on their record. For example:

  • If the offender has one prior imprisonment, they can face 2-20 years of state imprisonment.
  • If the offender has two or more prior imprisonments. they may face 25 years up to life in prison.

Other DWI Offenses and Penalties That Can Lead to a Felony DWI in Texas

First and second DWI offenses are generally charged as misdemeanors.

However, the presence of an aggravating factor, such as high blood alcohol content, can elevate these charges to felony-level offenses in some cases.

First DWI – Driving While Intoxicated

A first DWI offense without any aggravating factors is charged as a Class B misdemeanor, which is punishable by:

  • 3-180 days of jail time
  • Fines up to $2,000
  • Loss of license for up to one year

Second DWI – Multiple Charges of Driving While Intoxicated Misdemeanor

A second DWI offense without any aggravating factors is charged as a Class A misdemeanor, which is punishable by:

  • 30-365 days of jail time
  • Fines up to $4,000
  • Loss of license for up to two years

Blood Alcohol Content Equal to or Exceeding 0.15%

Blood alcohol content equal to or exceeding 0.15% at the time of DWI arrest is considered to be an aggravating factor and can result in an enhanced charge leading to more serious penalties and sentencing.

For example, if you are facing a first DWI offense and your blood alcohol level is alleged to be over .15%, what would normally be charged as a Class B Misdemeanor can now be enhanced to a Class A Misdemeanor, punishable by up to 1 year in county jail and up to a $4,000 fine.

A savvy DWI defense lawyer will examine the blood alcohol lab results, and if the results are close to .15%, they could challenge the results to create reasonable doubt. Your lawyer should know there is a margin of error in every lab test that could place the result under the required legal standard of .15%. This could provide an opportunity for your DWI attorney to reduce your charge or potentially have your DWI charge cleared from your criminal record.

Can I Remove My DWI Charge From My Criminal Record?

The answer to this question will depend greatly upon the type of DWI you were charged with and how your DWI case was resolved. Generally, if you receive a conviction or sentence for DWI over .15, which is a class A Misdemeanor, you will be prohibited from being able to remove this charge and have your criminal record sealed.

However, if your DWI attorney is able to negotiate the DWI charge to a lesser charge of Class B Misdemeanor DWI, you may now be eligible to file a request for non-disclosure. However, if someone was injured as a result of a DWI accident, the law prohibits the option of sealing your arrest records.

How Does a DWI Probation Affect My Criminal Record?

Under Texas law, you can now receive a type of probation known as deferred adjudication, but only in certain DWI cases. To understand if your DWI charge qualifies for deferred adjudication, ask a qualified Texas DWI attorney.

Deferred adjudication is a type of probation that does not result in a conviction. Although you are required to enter a plea of guilty or "no contest," the judge does not render a finding of guilt. In exchange for you completing all the terms and conditions of probation, the judge agrees to dismiss your case and terminate your probation.

If your lawyer is able to negotiate a deferred adjudication for your first DWI offense and you complete the terms and conditions of the deferred probation, you will be eligible to have your DWI arrest and case records sealed from your criminal record. This will allow you to honestly tell a potential employer that the DWI arrest ever took place because those records will be sealed from any background check your employer might run against you.

What Must Be Shown In Court To Prove Intoxication?

Generally, the State of Texas must prove the following elements beyond a reasonable doubt to prove the crime of Driving While Intoxicated:

  • an individual was operating a motor vehicle
  • in a public place
  • while intoxicated.

As you can imagine, the most litigated element of a DWI trial involves the evidence of intoxication. Let's dig into each element.

Prosecutor Must Prove You Were “Operating” A Motor Vehicle

In order to convict you of Felony DWI, the District Attorney’s Office must prove beyond a reasonable doubt that you were “operating” a motor vehicle in a public place. Does that mean you were actually driving? Not necessarily. You do not have to be physically moving the vehicle to be operating it under DWI law. The good news is that Texas law is not crystal clear on what constitutes operating.

For example, if the evidence at a felony DWI trial thshows you were sleeping off your intoxication in your vehicle while it remained in Park position, many juries have a hard time convicting someone beyond a reasonable doubt regarding the element of “operating.” However, if you fall asleep in a drive-thru lane at a fast-food restaurant because you were intoxicated, the same jury would be more likely to enter a conviction. The reason why you were in the car can matter to a jury.

The State Must Prove You Were Intoxicated at the Time of the Arrest

Under Texas law, the State of Texas must prove your intoxication beyond a reasonable doubt by proving one of the following:

  1. Loss of the normal use of your mental faculties due to alcohol or drug use or
  2. Loss of the normal use of your physical faculties due to alcohol or drug use or
  3. An alcohol concentration of .08 or higher at the time you were driving

As you can see, the first 2 definitions of intoxication are very subjective and opinion-based. At the time of the arrest, the police officer must determine your mental and physical faculties. They will have you get out of the carto see you, smell you, and have you perform field sobriety tests to attempt to “grade” you and use those results as probable cause to arrest you for driving while intoxicated.

You can refuse to perform field sobriety tests, however, you may face immediate arrest and license suspension. The police officer wnats to use the test results as evidence in support of the DWI charge. If the police officer fails to administer field sobriety tests in accordance with the standards of the National Highway Traffic and Safety Administration, the tests could be deemed unreliable to prove intoxication.

A skilled DWI attorney will sit down with you and review all evidence including any videos in detail. Ask your lawyer whether the DWI officer was administering the field sobriety tests correctly. Ask them if the officer followed the guidelines laid out by the National Highway Traffic and Safety Administration. If you determine the tests were administered improperly or unfairly, your DWI attorney can file pre-trial motions requesting a hearing to challenge the admissibility of the field sobriety tests.

Don't Face a Felony DWI in Texas Alone, Contact the DWI Attorneys at Fulgham Hampton Today

If you have been charged with a felony DWI, it is vital to contact an experienced DWI legal professional as soon as possible to make sure your rights are protected. Our knowledgeable Fort Worth criminal defense lawyers can help, but you must reach out first. Call our DWI team at (817) 877-3030 for a free case analysis and answers to all your questions so that we can fight your Texas felony DWI case together.

About the Author:

Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.

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