Texas Penal Code 49.04 – Driving While Intoxicated (“DWI”)
WHAT IS DRIVING WHILE INTOXICATED (“DWI”) IN TEXAS?
The Texas law against driving while intoxicated, or “DWI,” prohibits operating a motor vehicle in a public place while intoxicated.
- What is the legal limit for DWI in Texas? Texas Penal Code Section Section 49.01 defines “intoxication” in two ways: (1) a blood alcohol concentration (“BAC”) of 0.08 or more; or (2) 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.The subjective definition, or one’s loss of normal use of mental or physical faculties, does not require proof that a person’s blood alcohol concentration was above 0.08.
For example, in Aguirre v. State, the defendant was arrested for DWI, and his blood test later showed a 0.075 blood alcohol concentration. But the other evidence showed he was going 102 miles per hour, had bloodshot eyes, slurred speech, and a can of beer in the car. The defendant also showed several clues of intoxication during the Standardized Field Sobriety Tests (SFSTs). Based on the evidence, the jury found him guilty, and the appellate court affirmed.
- What is DWI .15 or higher in Texas? Texas law enhances a person’s first driving while intoxicated charge from a Class B misdemeanor to a Class A misdemeanor if a person’s blood alcohol concentration (BAC) is 0.15 or more.
WHAT IS THE DRIVING WHILE INTOXICATED LAW IN TEXAS?
Tex. Penal Code § 49.04. DRIVING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.
Tex. Penal Code § 49.09. ENHANCED OFFENSES AND PENALTIES.
(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
(b-1) An offense under Section 49.07 is:
(1) a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a firefighter or emergency medical services personnel while in the actual discharge of an official duty; or
(2) a felony of the first degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer or judge while the officer or judge was in the actual discharge of an official duty.
(b-2) An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).
(b-4) An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state.
(c) For the purposes of this section:
(1) “Offense relating to the operating of a motor vehicle while intoxicated” means:
(A) an offense under Section 49.04 or 49.045;
(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;
(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;
(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or
(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.
(2) “Offense of operating an aircraft while intoxicated” means:
(A) an offense under Section 49.05;
(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon’s Texas Civil Statutes), as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or
(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.
(3) “Offense of operating a watercraft while intoxicated” means:
(A) an offense under Section 49.06;
(C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or
(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.
(4) “Offense of operating or assembling an amusement ride while intoxicated” means:
(A) an offense under Section 49.065;
(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.
(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D. For purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.
(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant’s own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Subchapter I, Chapter 42A, Code of Criminal Procedure, this subsection controls.
WHAT IS THE PENALTY CLASS FOR DRIVING WHILE INTOXICATED IN TEXAS?
The penalty classification for driving while intoxicated depends on a person’s prior convictions, if any, and the person’s blood alcohol concentration while driving.
- Class B misdemeanor, punishable by 72 hours to 180 days in county jail:
- first driving while intoxicated offense (DWI 1st);
- Class B misdemeanor, punishable by six days to 180 days in county jail:
- first driving while intoxicated offense with an open container (DWI 1st–open container);
- Class A misdemeanor, punishable by 72 hours to one year in county jail:
- first driving while intoxicated offense with a 0.15 BAC or more (DWI .15 or higher);
- Class A misdemeanor, punishable by 30 days to one year in county jail:
- a subsequent driving while intoxicated arrest with one prior intoxication-related conviction or deferred adjudication (DWI 2nd);
- Third degree felony, punishable by two to ten years in prison:
- driving while intoxicated with at least two prior intoxication-related convictions or deferred adjudication (DWI 3rd or more); or
- driving while intoxicated with a prior conviction for intoxication manslaughter.
Driving while intoxicated offenses may be further enhanced by other factors, and prior convictions. Learn more.
WHAT IS THE PUNISHMENT RANGE FOR DRIVING WHILE INTOXICATED IN TEXAS?
The punishment range for driving while intoxicated corresponds to the penalty classification, and a person’s prior convictions, if any.
- Class B misdemeanor driving while intoxicated, first offense:
- three days to 180 days in jail, maximum $2,000 fine in addition to DWI superfines;
- Class B misdemeanor driving while intoxicated, first offense with an open container:
- six days to 180 days in jail, maximum $2,000 fine in addition to DWI superfines;
- Class A misdemeanor driving while intoxicated, first offense with 0.15 BAC or higher:
- three days to one year in jail, maximum $4,000 fine in addition to DWI superfines;
- Class A misdemeanor driving while intoxicated, second offense:
- 30 days to one year in jail, maximum $4,000 fine in addition to DWI superfines;
- Third degree felony driving while intoxicated third or more, or DWI with a prior intoxication manslaughter conviction:
- two to ten years in prison, maximum $10,000 fine in addition to DWI superfines.
WHAT ARE THE PENALTIES FOR DRIVING WHILE INTOXICATED IN TEXAS?
A person charged with Class B misdemeanor DWI 1st will be eligible for probation or deferred adjudication for up to two years. A person charged with Class A misdemeanor or third degree felony DWI is not eligible for deferred adjudication.
The probation period for Class A misdemeanor driving while intoxicated may not exceed two years. A person may be placed on probation for a third degree felony driving while intoxicated for up to ten years.
- Is a person charged with DWI eligible for deferred adjudication in Texas? Texas Code of Criminal Procedure article 42A.102 allows a judge to grant deferred adjudication to a person accused of driving while intoxicated, unless the person held a commercial driver’s license at the time of the offense, has a previous driving while intoxicated conviction or deferred adjudication, or had a blood alcohol concentration of 0.15 or higher. A person may be placed on deferred adjudication for up to two years.
- What are DWI “superfines”? Texas Transportation Code Section 709.001 requires traffic fines in addition to the court-ordered fine for a person convicted of driving while intoxicated. The traffic fine amount depends on the person’s blood alcohol concentration at the time of the offense, and whether the person has prior convictions:
- $3,000 for a first conviction, to be paid over a period of 36 months;
- $4,500 for a subsequent conviction, to be paid over a period of 36 months; or
- $6,000 for a first or subsequent conviction if the person’s blood alcohol concentration was 0.15 or higher.
- What is the difference between DWI and DUI in Texas? DUI, or driving under the influence, is the charge for minors who operate a motor vehicle or watercraft with any detectable amount of alcohol in their system. The first or second arrest for a DUI is a Class C misdemeanor, while a person’s first DWI charge is a Class B misdemeanor. Learn more about defending against DUI charges.
- Will my license be suspended if convicted of a DWI in Texas? Texas Transportation Code Section 521.344 requires the following periods of license suspension for driving while intoxicated convictions for persons age 21 and up:
- DWI 1st & consented to blood/breath test: 90 days to one year
- DWI 1st & refused blood/breath test: 180 days to one year
- DWI 2nd or more (within five years) & gave blood/breath sample: one to two years
- DWI 2nd or more (within five years) & refused to give sample: 2 years
If under 21 years old, automatic driver’s license suspension periods are:
- DWI 1st: one year
- DWI 2nd: 18 months
Learn more about DWI license suspensions.
- Can I get an occupational driver license with a suspended license in Texas? Yes. Texas law permits a person to get an essential need license, or occupation driver license, during a period of suspension or revocation. The Texas Transportation Code sets out the application requirements. Learn more.
- Does insurance go up after a DWI? Yes. Texas Insurance Code Section 1953.052 permits a premium surcharge for a person convicted of driving while intoxicated, intoxication assault, and intoxication manslaughter for a minimum of three years following the conviction. Learn more.
- Will ignition interlock or other alcohol monitoring device be required after a DWI arrest? Texas Code of Criminal Procedure article 17.441 requires a person arrested for DWI to install ignition interlock on any vehicle a person owns or regularly drives if the person has been previously convicted of driving while intoxicated. For a first offense, a magistrate may require ignition interlock. The accused will be required to pay all accompanying fees to the company contracting with the county that installs the device.
- Can a DWI be expunged or sealed in Texas? Yes, under certain circumstances. Texas Government Code Section 411.0736 permits a person who has completed a DWI sentence to petition for a nondisclosure. Learn more.
- How will a DWI affect a person’s job as a teacher? Texas Teachers who are arrested for driving while intoxicated may be vulnerable to revocation of their teaching certification. Texas Education Code Sections 21.058 and 21.060 permit the State Board to revoke certification for certain offenses. Learn more.
- Does a DWI affect a person’s job as a nurse in Texas? Healthcare professionals arrested for driving while intoxicated may be subject to license revocation proceedings. Texas Government Code Section 411.125 permits the Texas Board of Nursing to access a licensed nurse’s criminal history, which may propose to revoke or deny renewal of a person’s nursing license. Learn more.
WHAT ARE THE DEFENSES TO DRIVING WHILE INTOXICATED IN TEXAS?
The statute does not authorize specific defenses to driving while intoxicated, but the justification defenses, including necessity, are available for a person accused of DWI. A person accused of DWI may also attempt to negate at least one of the elements the State must prove at trial.
- Can a person be convicted of DWI in Texas if the car was parked? Yes, depending on the circumstances. Texas law requires proof that a person was “operating” a vehicle while intoxicated, not that the person was actively driving at the time. The statute does not define “operating,” but Texas courts have determined whether a person operates a vehicle or watercraft when, based on the totality of the circumstances, the accused “took action to affect the functioning” of the vehicle or watercraft in a manner that would enable its use. See Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012).
- Is a person required to submit to a DWI blood test in Texas? Texas law permits a person to refuse a blood or breath test if arrested for driving while intoxicated. But pursuant to Texas Transportation Code Section 724.012, police may obtain a warrant based on probable cause to extract a specimen of an arrestee’s blood. The Transportation Code also requires a person’s license to be suspended for 180 days if the person refuses to consent to the taking of a blood or breath specimen. Learn more.In Mitchell v. Wisconsin, the U.S. Supreme Court held that unconscious drivers suspected of drunk driving are subject to warrantless blood draws due to exigent circumstances, and a compelling need of the State to promote the paramount interest of highway safety.
- What is a “public place” where a person can be arrested for DWI in Texas? Texas Penal Code Section 1.07(40) defines a “public place” as any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of school, hospitals, apartment houses, office buildings, transport facilities, and shops.Private parking lots have been upheld as public places within the Penal Code definition. For example, in State v. Gerstenkorn, the defendant was arrested for driving while intoxicated in a gated community, with a security guard and limited public access. The appellate court determined the gated community fell within the definition of a public place.
- What is the necessity defense to driving while intoxicated in Texas? Texas Penal Code Section 9.22 authorizes a person to commit otherwise criminal conduct if it was immediately necessary to avoid imminent harm, and the urgency of avoiding the harm clearly outweighed the harm sought to be prevented by the criminal conduct.The necessity defense is available for a driving while intoxicated charge. In Maciel v. State, the defendant and her brother went out drinking. Her brother drove her vehicle, but stopped in the road and started vomiting. The defendant got into the driver’s seat to move the car, but smoke came from under the hood as she tried to move it. An officer saw her, and she was arrested for DWI. The defendant argued it was necessary, and that she was not operating the vehicle.
The Texas Court of Criminal Appeals held the defendant was operating the car, but was entitled to the defense of necessity. She admitted to attempting to move the car out of the road due to safety concerns.
- Can taking medication before driving lead to a DWI in Texas? Yes. Texas Penal Code Section 49.10 provides it is not a defense to intoxication offenses if the person was “entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance.” This means that even if a person was driving under the influence of legally prescribed medication, the person may still be charged with an intoxication offense if the State proves loss of normal use of mental or physical faculties.For example, in Noska v. State, the defendant crashed into another vehicle around 9:00 a.m. on the way to her daughter’s school. She was under the influence of legally prescribed Xanax, Carisoprodol (“Soma”), Vicodin, and a small amount of opiates and cannabinoids. Her doctor warned her about driving after taking them. The defendant was convicted of intoxication manslaughter and intoxication assault, and the appellate court affirmed.
WHAT IS THE STATUTE OF LIMITATIONS FOR DRIVING WHILE INTOXICATED IN TEXAS?
The limitation period for Class A or B misdemeanor DWI is two years. The limitation period for driving while intoxicated enhanced to a third degree felony is three years.
- When is a person formally charged for statute of limitations purposes in Texas? A person is formally charged when an information or indictment is presented. Texas Code of Criminal Procedure article 12.07 explains an information is “presented” when it is filed “by the proper officer in the proper court.” According to article 12.06, an indictment is “presented” when signed and approved by a grand jury, and filed with the proper court. The State must present an information or indictment within the applicable limitation period.
DRIVING WHILE INTOXICATED IN TEXAS
Driving while intoxicated in Texas is operating a vehicle in a public place while legally intoxicated. Intoxication depends on a person’s loss of normal use of mental and physical faculties, but may also be shown by a person’s blood alcohol concentration of 0.08 or more. DWI is an enhanceable offense in Texas, meaning the more times a person commits the offense, the higher the penalties.
TEXAS DRIVING WHILE INTOXICATED COURT CASES
The case law regarding driving while intoxicated in Texas illustrates the wide range of consequences of violating the statute.
- In Bigon v. State, the defendant was driving home with his 8-year-old son when he hit another vehicle head-on, killing the two occupants. He had a 0.227 BAC an hour after the crash. He was convicted of felony murder with the underlying felony as driving while intoxicated with a child passenger under 15 years old, and the appellate court affirmed.
- In Miles v. State, the defendant crashed into a limousine, but left the scene before police arrived. A tow-truck driver followed the defendant, and blocked him in to wait for police. The defendant was arrested for driving while intoxicated, but argued his citizen’s arrest was illegal. The Texas Court of Criminal Appeals held a tow-truck driver was authorized by article 14.01(a) of the Texas Code of Criminal Procedure to make a citizen’s arrest of the defendant for DWI.
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DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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