UPDATED 8/18/2021, 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.
NOTE: It is important to understand that regardless of whether your DWI charge is filed as a misdemeanor or felony case, you have a deadline of 15 days to preserve your right to fight a Texas DWI driver’s license suspension. 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. Failure to make this request timely will result in a suspension of your Texas driver’s license. This suspension would become effective 40 days after the date of your arrest. As a result, make sure you circle on your calendar the deadline date and locate a local Texas attorney to help you preserve your right to an administrative license revocation hearing.
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 you have been previously convicted of at least 2 prior misdemeanor DWI offenses. However, there are certain circumstances under which you will be charged with a felony even for a first or second DWI offense.
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. Failure to prove this critical element of the offense beyond a reasonable doubt would require the State of Texas to drop the charge down to the lesser offense of misdemeanor DWI.
TIP: When speaking with DWI lawyers, it is important to bring up the issue of fighting your case at the Grand Jury! 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 a packet of evidence should be submitted to the grand jury to fight your case. For example, if the evidence were to indicate that an injury took place but the DWI crash report indicated that the cause of the accident was due to the alleged victim’s failure to yield at a right of way, this information could be used to determine that the intoxication was not the legal cause of the injury, resulting in the case being lowered to a lesser charge of DWI.
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 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 if your case goes to a jury trial. Additionally, the same options available to your DWI attorney listed above could apply here. Your DWI lawyer could gather evidence and make a presentation to the grand jury to potentially no bill the case or have it dropped to a lesser charge of misdemeanor DWI.
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. Under Texas law, DWI with 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 child passenger 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. 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 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, 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
Second DWI – Driving While Intoxicated Misdemeanor Repetition
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
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 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.
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 take a conviction or sentence for DWI over .15, which is a class A Misdemeanor, you will be prohibited from being able to seal this charge from your criminal record.
However, if your DWI attorney is able to negotiate the DWI over .15 to the lesser charge of Class B Misdemeanor DWI, you may now be eligible for a non-disclosure. One exception to this is if there was someone injured as a result of a DWI accident. If someone was injured during the DWI offense, the law prohibits the option of sealing your arrest records.
Under Texas law, you can now receive a type of probation known as deferred adjudication for qualifying DWI cases. 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 never renders a finding of guilt. In exchange for you completing all the terms and conditions of probation, the judge will agree to dismiss your case and terminate your probation.
If your lawyer is able to negotiate a deferred adjudication for your 1st 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 deny to any employer that the DWI arrest ever took place and it 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. How is Intoxication proven?
Under Texas law, Intoxication must be proven by the State of Texas beyond a reasonable doubt and they must prove one of the following:
- Loss of the normal use of your mental faculties due to alcohol or a drug or
- Loss of the normal use of your physical faculties due to alcohol or a drug or
- 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.
TIP: After you have hired your DWI attorney, ask them to sit down with you and go over the videos in detail. Ask him/her questions about whether the DWI officer was administering the field sobriety tests correctly. Ask them if they were following the guidelines laid out by the National Highway Traffic and Safety Administration. If you are able to determine the tests were administered improperly or unfairly, your DWI attorney can file pre-trial motions requesting a hearing to determine the admissibility of the field sobriety tests.
If you are facing a misdemeanor or 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. We would be happy to provide you a free case analysis and answer all your questions so that you will be prepared to fight your Texas DWI case.
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.