DWI: When Is Driving Intoxicated a Felony in Texas?

By January 5, 2018July 15th, 2021Drunk Driving, DUI

UPDATED 7/8/2021, Original Post: January 5, 2018

A driving while intoxicated (DWI) conviction is life-changing no matter how it is charged, as you will face long probationary periods, suspension of your driver’s license, and the long-term consequences of having a criminal record.

However, when a DWI is charged as a felony-level offense, these consequences are much more grievous. Felony-level DWI offenses are sentenced far more severely. Moreover, as a convicted felon, your freedom will be compromised.

So, when is a DWI offense charged as a felony, and what are the criminal penalties?

Felony-Level DWI Offenses and Penalties in Texas

A DWI is generally only charged as a felony if it is a third or greater offense. However, there are certain circumstances under which you will be charged with a felony even for a first or second DWI offense.

Intoxication Assault

If you injure another motorist or a pedestrian while driving intoxicated, you will be charged with a third-degree felony, even if this is your first or second DWI offense. Intoxication assault is punishable by:

  • 2-10 years of state imprisonment
  • Fines up to $10,000

One of the key issues to examine when defending an Intoxication Assault charge is whether the alleged intoxication is the direct cause of the injury to the victim. In other words, the State of Texas must prove beyond a reasonable doubt that the injury was sustained due to the intoxication.

Intoxication Manslaughter

If you kill another motorist or a pedestrian while driving intoxicated, you will be charged with intoxication manslaughter, which is a second-degree felony punishable by:

  • 2-20 years of state imprisonment
  • Fines up to $10,000

Similar to Intoxication Assault, Intoxication Manslaughter requires a showing that the element of intoxication was the actual cause of the death of another. Failure to do so will result in a not guilty verdict.

DWI with Child Passenger

If you are carrying a child passenger under 15 when you are arrested, you will be charged with a DWI with child passenger. This is considered a State Jail Felony, which is punishable by:

  • 180 days – two years of jail time
  • Up to $10,000 in fines

Third or More DWI Offense

The third DWI offense is taken much more seriously than prior offenses. A third DWI is charged as a third-degree felony, and is punishable by:

  • State imprisonment for 2-10 years
  • Fines up to $10,000

Can the State of Texas prove 2 prior DWI convictions? Your DWI lawyer must examine the paperwork associated with your prior DWI convictions to see if they can be used in court. For example, we have represented DWI clients in the past where their prior DWI convictions came from small Texas counties from many years ago. Many small counties in Texas only keep records available for so many years and have not converted them to a digital format.

Never assume the State of Texas has the actual records to prove these convictions. Your DWI lawyer may be able to determine these records are no longer available and that may assist you in being able to create leverage for a better resolution to your Felony DWI case.

Third or More DWI Offense with Prior State Imprisonment

If an offender is convicted of a third or more DWI and has previously been incarcerated in Texas State Prisons for any offense, the DWI is charged as a second-degree felony and is punishable by:

  • One prior imprisonment: 2-20 years of state imprisonment
  • Two or more prior imprisonments: 25 years to life of state imprisonment
  • Fines up to $10,000

Other Texas DWI Offenses and Penalties

First and second DWI offenses are generally charged as misdemeanors.

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

First DWI

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

Second DWI

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

  • 30-360 days of jail time
  • Fines up to $4,000

Fort Worth DWI LawyerBlood 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 results in enhanced 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.

One possible defense to this charge is to examine the blood alcohol lab results and if the results are close to .15%, your DWI attorney can create reasonable doubt regarding the blood result because 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 lower your charge and potentially make you eligible to have your DWI cleared from your criminal record.

What Must Be Shown In Court To Prove Intoxication?

Under Texas law, Intoxication must be proven by the State of Texas beyond a reasonable doubt and they must prove one of the following:

  1. Loss of the normal use of your mental faculties due to alcohol or a drug or
  2. Loss of the normal use of your physical faculties due to alcohol or a drug 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. The only way to determine your mental and physical faculties is for the police officer to have you get out of the car, 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 always have the right to refuse to provide field sobriety tests. Additionally, 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 should be deemed unreliable as a basis of determining intoxication.

If you are facing a felony DWI, it is vital that you get professional legal help as soon as possible to make sure that your rights are protected. Our knowledgeable Texas DWI lawyers can help, but only if you reach out first.

If you are facing a felony DWI, it is vital that you get professional legal help as soon as possible to make sure that your rights are protected. Our knowledgeable Texas DWI lawyers can help, but only if you reach out first.

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.