Driving While Intoxicated

The criminal offense of driving while intoxicated (often called "DWI") is charged under Texas Penal Code Section 49.04. DWI occurs when a person is intoxicated while operating a motor vehicle in a public place. The term “public place” means any place to which the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

For a first offense, the crime of DWI is charged as a Class B Misdemeanor that comes with a minimum confinement of 72 hours. Six days of confinement is imposed if the defendant was DWI while in possession of an open container at the time of the offense.

Attorney for DWI in San Antonio, TX

If you were charged with the driving while intoxicated, then contact an attorney experienced in representing clients charged with criminal traffic crimes such as DWI, reckless driving, driving with a suspended license, or racing on a highway. After an arrest for DWI involving either a chemical test of your breath or blood or an alleged refusal to submit to such a test, contact an experienced criminal defense attorney at Flanary Law Firm, PLLC. 

With offices in San Antonio, TX, Don Flanary represents clients in Bexar County and the surrounding counties. Call (210) 738-8383 today.


Definition of Intoxication in DWI Cases in Texas 

Under Texas law, the term “intoxicated” means not having the normal use of mental or physical faculties by reason of the consumption of:

  • alcohol;
  • a controlled substance;
  • a drug; a dangerous drug; or
  • a combination of two or more of those substances or any other substance into the body.

Intoxicated can also mean having an alcohol concentration of 0.08 or more. The term “alcohol concentration” means the number of grams of alcohol per 210 liters of breath, 100 milliliters of blood, or 67 milliliters of urine.

For purposes of the DWI statute, the term “controlled substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.

The term “drug” means a substance, other than a device or a component, part, or accessory of a device, that is recognized as a drug in the:

  • official United States Pharmacopoeia;
  • official Homeopathic Pharmacopoeia of the United States;
  • official National Formulary.

The term "drug" can also include a supplement to either pharmacopoeia or the formulary that is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals or is intended to affect the structure or function of the body of man or animals but is not food, or is intended for use as a component of a substance described in this definition.

The term "dangerous drug” means a device or a drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of the Texas Controlled Substances Act.

Under the Texas statute for DWI, the term “motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.


Types of DWI cases in Texas

Texas law provides for at least 18 different ways of charging an intoxication offense including:

  • Driving under the Influence (DUI) Minor (1st offenses) Class C
  • DUI Minor (2 or more previous final DUI-M dispositions & Def. 17 or Older) Class B
  • Driving While Intoxicated (DWI) (1st offense) Class B
  • Boating While Intoxication (BWI) (1st offense) Class B
  • Flying While Intoxicated (FWI) (1st offense) Class B
  • DWI with BAC > 0.15 Class A
  • DWI (1 previous Ch. 49 conviction) Class A
  • BWI (1 previous Ch. 49 conviction) Class A
  • FWI (1 previous Ch. 49 conviction) Class A
  • DWI with Child Passenger Class SJF
  • DWI (2 or more previous Ch. 49 convictions) - Third Degree Felony (F3)
  • BWI (2 or more previous Ch. 49 convictions) - Third Degree Felony (F3)F3
  • FWI (2 or more previous Ch. 49 convictions) - Third Degree Felony (F3)
  • DWI with 1 or more intoxication manslaughter convictions - Third Degree Felony (F3)
  • Intoxication Assault - Third Degree Felony (F3)
  • Intoxication Assault on peace officer, firefighter, EMS - Second Degree Felony (F2)
  • Intoxication Manslaughter - Second Degree Felony (F2)
  • Intoxication Manslaughter causing death of peace officer, firefighter, EMS - First Degree Felony (F1) 

Penalties for DWI in Texas

The penalties for driving while intoxicated (DWI) depend, in part, on the number of prior convictions. A first offense of DWI, is punishable by the following penalties: 

  • A fine of up to $2,000
  • Three days to 180 days in jail
  • Loss of driver license up to a year
  • Annual fee of $1,000 or $2,000 for three years to retain driver license

A first DWI can be classified in any of the following ways:

  • A first DWI in Texas is classified as a Class B Misdemeanor with a minimum 72 hours in jail.
  • A first DWI with an open container is classified as a Class B Misdemeanor with a minimum 6 days jail time.
  • A first DWI with a BAC of .15 or higher is classified as a Class A Misdemeanor.

For a second offense, DWI is classified as a Class A Misdemeanor with a minimum 30 days jail time. A second DWI is subject to the following penalties:

  • A fine of up to $4,000
  • One month to a year in jail
  • Loss of driver license up to two years
  • Annual fee of $1,000, $1,500 or $2,000 for three years to retain driver license

A third DWI offense is classified as a Third-Degree Felony (often called "Felony DWI"). Felony DWI for a third offense comes with the following penalties: 

  • A $10,000 fine
  • Two to 10 years in prison
  • Loss of driver license up to two years
  • Annual fee of $1,000, $1,500, or $2,000 for three years to retain driver license

After two or more DWI convictions in five years, the minimum penalties include a requirement that the defendant must install a special ignition switch that prevents the vehicle from being operated after consuming alcohol.


Felony DWI Penalties in Texas

The criminal penalties are much more serious for felony forms of DWI include intoxication assault and intoxication manslaughter. Those penalties include:

  • Intoxication Assault - Third-Degree Felony
  • Intoxication Assault with Serious Bodily Injury resulting in persistent vegetative state - Second-Degree Felony
  • Intoxication Assault - Third-Degree Felony
  • Intoxication Assault - Second-Degree Felony if serious bodily injury caused to peace officer, firefighter, or emergency medical personnel while in actual discharge of official duties
  • Intoxication Manslaughter - Second-Degree Felony
  • Intoxication Manslaughter Second-Degree
  • Intoxicating Manslaughter Felony First-Degree if serious bodily injury caused to peace officer, firefighter, or emergency medical personnel while in actual discharge of official duties)

DWI Involving a Combination of Drugs and Alcohol

In some cases, the prosecutor will argue that a synergistic effect occurred because the defendant ingested a drug or controlled substance in such a quantity and to such an extent that it made the defendant more susceptible to being under the influence of an intoxicating liquor alone.


DWI with a Child Passenger in Texas

Texas law provides for enhanced penalties if you are accused of DWI when a child passenger under the age of 15 years old is in the vehicle with you. The penalties for DWI with a child passenger include: 

  • A fine of up to $10,000;
  • Up to two years in a state jail; and
  • Loss of your driver license for 180 days.

DWI with a child passenger is charged as a state jail felony. The punishment for a non-enhanced state jail felony is confinement in a state jail for any term of not more than two (2) years or less than one-hundred eighty (180) days and a fine not to exceed $10,000.00. 


Intoxication Assault

Under Texa law, the criminal offense of intoxication assault requires proof beyond a reasonable doubt that the defendant operates a motor vehicle while intoxicated and as a result of such intoxication causes Serious Bodily Injury to another. The crime of Intoxication Assault in Texas is a third-degree felony, punishable by 2-10 years in prison and up to a $10,000.00 fine.


Intoxication Manslaughter

If the DWI results in a death that occurred as a proximate cause of the intoxication, then the crime is charged as intoxication manslaughter in Texas. A conviction for intoxication manslaughter comes with a maximum fine of $10,000.00 and/or imprisonment for 2 to 20 years. Crimes for intoxicated Manslaughter or Manslaughter with use of Deadly Weapon are both charged as a 2nd Degree felony.


Additional Resources

DWI Task Force in Bexar County - The DWI Task Force is a special criminal division of the District Attorneys Office in Bexar County, TX. The task force consists of prosecutors, investigators and an advocate dedicated to investigating and prosecuting alcohol and drug related crashes.

TXDOT DWI Information - Visit the Texas Department of Transportation website to find out more about the penalties and punishments in Texas for various types of DWI charges including a first offense, second offense, third offense, or driving with a child passenger.


Find Lawyers for DWI in Bexar County, TX

Don Flanary represents clients Driving While Intoxicated after submitting to a chemical test of breath or urine and for related charges of Driving under the Influence while under 21 years of age (DUI), Flying While Intoxicated (FWI), and Boating While Intoxicated (BWI).

If you were arrested for DWI in San Antonio, TX, or the surrounding areas, then contact an experienced traffic crimes attorney at Flanary Law Firm, PLLC. Call to learn more about the implied consent statute in Texas and how it might impact your case.

Call (210) 738-8383 today.


This article was last updated on Friday, January 13, 2017.

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