Texas DWI Law

Texas Penal Code Chapter 49 Intoxication & Alcoholic Beverage Offenses

Possession of Alcoholic Beverage in Motor Vehicle — Open Container
Under Tex. Penal Code § 49.031(b), a person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked.  An offense under this section is a Class C misdemeanor.

Class C Misdemeanor — MC
Under Tex. Penal Code § 12.23, an individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.

Driving While Intoxicated — DWI
Under Tex. Penal Code § 49.04(a), a person commits the offence of DWI if the person is intoxicated while operating a motor vehicle in a public place.

DWI First Offense — DWI-I
Under Tex. Penal Code § 49.04(b), A first offense DWI is a Class B misdemeanor with a minimum term of confinement of 72 hours.

Class B Misdemeanor — MB
Under Tex. Penal Code § 12.22, An individual adjudged guilty of a Class B misdemeanor shall be punished by a fine not to exceed $2000; confinement in jail not to exceed 180 days; or, both such fine and confinement.

DWI with Open Container
Under Tex. Penal Code § 49.04(c), if it is shown on the trial of a DWI that at the time of the offense the person operating the motor vehicle has 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.

DWI With BAC 0.15 or More
Under Tex. Penal Code § 49.04(d), if it is shown on the trial of a DWI 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.

Class A Misdemeanor — MA
Under Tex. Penal Code § 12.21, An individual adjudged guilty of a Class A misdemeanor shall be punished by a fine not to exceed $4000; confinement in jail for a term not to exceed one year; or, both such fine and confinement.

Driving While Intoxicated With Child Passenger — DWI with Child Passenger
Under Tex. Penal Code § 49.045, A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place and the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.  An offense under this section is a state jail felony.

State Jail Felony — SJF
Under Tex. Penal Code § 12.35, an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days in addition to a fine not to exceed $10,000.

Flying While Intoxicated — FWI
Under Tex. Penal Code § 49.05, a person commits an offense if the person is intoxicated while operating an aircraft.  An offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.

Boating While Intoxicated — BWI
Under Tex. Penal Code § 49.06, a person commits an offense if the person is intoxicated while operating a watercraft.  An offense under this section is a Class B misdemeanor with a minimum confinement of 72 hours.

Assembling Or Operating An Amusement Ride While Intoxicated
Under Tex. Penal Code § 49.065, a person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.  An offence under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.

Intoxication Assault — Intoxicated Assault
Under Tex. Penal Code § 49.07, a person commits an offense if the person, by accident or mistake, while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.  An offense under this section is a felony of the third degree.

Third Degree Felony — F-3
Under Tex. Penal Code § 22.34, an individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years and a fine not to exceed $10,000.

Intoxication Manslaughter — Intoxicated manslaughter
Under Tex. Penal Code § 49.08, a person commits an offense if the person operates a motor vehicle in a public place and is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.  An offence under this section is a felony of the second degree.

Second Degree Felony — F-2
Under Tex. Penal Code § 12.33, an individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years and a fine not to exceed $10,000.

Enhanced Offenses & Penalties

DWI-II — DWI Subsequent
Under Tex. Penal Code § 49.09(a), an offense of DWI, Flying While Intoxicated, Boating While Intoxicated, or Assembling or Operating an Amusement Ride While Intoxicated 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 related to Driving, Flying, Boating or Assembly or Operation of an Amusement Ride While intoxicated.

DWI-III — DWI Third or More
Under Tex. Penal Code § 49.09(b), an offense of DWI, Flying While Intoxicated, Boating While Intoxicated, or Assembling or Operating an Amusement Ride While Intoxicated is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted of Intoxication Manslaughter or two times of any other offense relating to DWI, Flying While Intoxicated, Boating While Intoxicated, or Assembling or Operating an Amusement Ride While Intoxicated.

DWI Causing Injury to Firefighter or EMT
Under Tex. Penal Code § 49.09(b-1)(1), an offense of Intoxication Assault 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 a firefighter or emergency medical services provider while in the actual discharge of an official duty.

DWI Causing Injury to a Police Officer or Judge
Under Tex. Penal Code § 49.09(b-1)(2), an offense of Intoxication Assault is 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 in the actual discharge of an official duty.

DWI Causing Death to Firefighter, EMS, Police Officer or Judge
Under Tex. Penal Code § 49.09(b-2), an offense of Intoxication Manslaughter 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 firefighter, emergency medical services provider, peace officer or judge while in the actual discharge of an official duty.

First Degree Felony — F-1
Under Tex. Penal Code § 12.32, an individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years and a fine not to exceed $10,000.

No Defense
Under Tex. Penal Code § 49.10, in a prosecution for DWI, Flying While Intoxicated, Boating While Intoxicated, or Assembling or Operating an Amusement Ride While Intoxicated, Intoxication Assault, or Intoxication Manslaughter, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug or other substance is no defense.

Proof Of Mental State Unnecessary
Under Tex. Penal Code § 49.11, proof of a culpable mental state is not required for conviction of DWI, Flying While Intoxicated, Boating While Intoxicated, or Assembling or Operating an Amusement Ride While Intoxicated, Intoxication Assault, or Intoxication Manslaughter.

Definitions

Alcohol Concentration
Under Tex. Penal Code § 49.01(1), alcohol concentration means the number of grams of alcohol per: 210 liters of breath; 100 milliliters of blood; or, 67 milliliters of urine.

Intoxication
Under Tex. penal Code § 49.01(2), intoxication means 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, or having an alcohol concentration of 0.08 or more.

Motor Vehicle
Under Tex. Penal Code § 32.34(2), means a devise in, on, or by which a person or property may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks.

Serious Bodily Injury
Under Tex. Penal Code § 49.07(b), “serious bodily injury” means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

Fighting for the Rights of Texans

Since 1995, I have served the people of Texas with integrity, honor, and commitment. I understand that most of you are not familiar with the legal system and under a lot of stress. I am there to lift that burden and protect your rights. I have battled insurance companies and prosecutors for decades and will continue to fight for justice for many more years to come. Please call me at 512-969-1200 and I will be happy to meet with you and evaluate your case.