Driving while intoxicated is one of the most heavily prosecuted offenses in Texas. The legislature has steadily expanded the penalties over the years, and Williamson and Travis County prosecutors generally treat these cases as priority matters. A first offense that might have been treated as a manageable traffic court issue decades ago can now carry jail time, thousands of dollars in fines and surcharges, an extended license suspension, and a permanent criminal record.
If you have been charged with DWI in Texas, you need to understand what the State must prove, what defenses are available, and how the administrative side of the case interacts with the criminal side. This article walks through Texas DWI law in plain terms.
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How Texas Defines DWI
Under Section 49.04 of the Texas Penal Code, a person commits driving while intoxicated by operating a motor vehicle in a public place while intoxicated. The statutory definition of intoxicated, found in Section 49.01, is what trips up most people. A person is intoxicated when they have lost the normal use of mental or physical faculties due to alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances, or any other substance into the body, or when they have a blood or breath alcohol concentration of 0.08 or more.
Two important takeaways live in that definition. First, you can be convicted of DWI without ever taking a breath or blood test, based purely on an officer's testimony about your driving, your appearance, and your performance on field sobriety tests. Second, the law covers more than alcohol. Prescription medications, recreational drugs, and even some over the counter substances can support a DWI charge if they affect your faculties.
BAC Limits and How They Apply
The general adult limit is 0.08. For commercial drivers, the limit drops to 0.04. For drivers under 21, Texas applies a zero tolerance standard under the Alcoholic Beverage Code, meaning any detectable alcohol can lead to a charge. There is also an enhanced category at 0.15 or higher, which raises a first DWI from a Class B misdemeanor to a Class A misdemeanor and triggers stiffer penalties, including longer license suspension and the possibility of an ignition interlock requirement as a condition of bond.
BAC testing comes with its own legal terrain. Breath tests in Texas are most often performed on the Intoxilyzer 9000. Blood tests, increasingly common, are typically drawn at a hospital or jail and analyzed by a Department of Public Safety lab. Each testing method has documented sources of error, calibration requirements, and chain of custody rules, all of which can become defense issues.
First Offense Penalties
A standard first DWI in Texas is a Class B misdemeanor. The statutory range includes up to 180 days in county jail with a minimum of 72 hours, a fine of up to 2000 dollars, license suspension of up to one year, and probation with mandatory conditions that often include alcohol education courses and community service hours. In addition, Texas previously imposed Driver Responsibility surcharges, although those were repealed in 2019 and replaced with higher one time fees of up to 6000 dollars under Section 709.001 of the Transportation Code, depending on the BAC and offense.
A first DWI with a BAC of 0.15 or higher rises to a Class A misdemeanor: up to one year in county jail and a fine of up to 4000 dollars. Bringing an open container into the vehicle adds a minimum jail sentence of six days under Section 49.09.
Repeat Offense Penalties
Penalties escalate rapidly. A second DWI is a Class A misdemeanor with a maximum jail sentence of one year and a minimum of 72 hours. Repeat offenders also face longer license suspension and mandatory ignition interlock during the suspension period.
A third DWI is a third degree felony, punishable by 2 to 10 years in the Texas Department of Criminal Justice and a fine of up to 10000 dollars. A fourth or later DWI can be enhanced further. Intoxication assault and intoxication manslaughter, where a person is seriously injured or killed, are second and second degree felonies respectively, with prison ranges that can extend up to 20 years.
License Suspension and ALR Hearings
A DWI arrest in Texas creates two parallel cases. The first is the criminal prosecution. The second is the Administrative License Revocation, or ALR, proceeding through the Department of Public Safety. The ALR side moves on its own clock and its own rules. If you refused a breath or blood test, your license is subject to suspension for 180 days for a first refusal and two years for a refusal with a prior alcohol related contact. If you provided a sample that came back at 0.08 or higher, the suspension is 90 days for a first occurrence and one year with a prior contact.
You have only 15 days from the date of arrest to request an ALR hearing. Miss that deadline and the suspension takes effect automatically. The ALR hearing is also one of the best discovery opportunities defense lawyers have, because it forces the officer to testify under oath about the stop and arrest before the criminal trial.
Common DWI Defenses
DWI defense is rarely about denying that someone had a drink. It is about challenging the State's ability to prove each element beyond a reasonable doubt. Common defense angles include:
- The initial traffic stop. If the officer lacked reasonable suspicion to pull you over, evidence gathered after the stop may be suppressed.
- The arrest itself. The officer must have probable cause that you were intoxicated. Field sobriety tests have well documented reliability issues, particularly when conducted on uneven surfaces, in poor lighting, or on people with certain medical conditions.
- Breath test reliability. Calibration, maintenance records, and operator certification all matter. So does the 15 minute observation period required before the test.
- Blood test issues. Chain of custody, the qualifications of the person who drew the blood, storage, and laboratory protocols are all open to challenge.
- Rising blood alcohol. A BAC measured an hour after driving may not reflect the BAC at the time of driving if alcohol was still being absorbed.
- Medical conditions. Certain conditions such as acid reflux, diabetes, and inner ear disorders can produce results that mimic intoxication on field sobriety or breath testing.
Collateral Consequences Beyond Sentencing
The fine and jail time are only part of what a DWI conviction costs. Auto insurance premiums often double or triple. Employment in fields that require driving, professional licensing, or federal security clearance can suffer. Commercial drivers face additional consequences under federal regulations. For non citizens, a DWI conviction can create immigration complications. Once on a record, a DWI does not go away without an order of nondisclosure, and Texas only began allowing nondisclosure for certain first time DWIs in 2017 under House Bill 3016.
The Texas Department of Transportation publishes statistics, education materials, and program information related to impaired driving on the TxDOT website for those who want more background on state policy and enforcement.
If you have been charged with DWI in Round Rock, Georgetown, Austin, or anywhere in Central Texas, an experienced defense attorney can examine every part of the case, from the stop to the lab results, and identify defense opportunities the State does not want you to know about. Contact our office to discuss your case in confidence.
Facing Criminal Charges in Texas?
Every case is different. A confidential review of your situation can identify defense options you may not realize you have. Contact The Brunner Law Firm to begin.
Request a ConsultationFrequently Asked Questions
Yes. Texas law defines intoxication two ways. One is based on BAC at 0.08 or above. The other is based on the loss of normal mental or physical faculties due to alcohol or other substances. A driver can be charged on the faculties prong with no BAC test at all.
Refusal triggers an automatic 180 day license suspension for a first refusal under the ALR program. However, officers will often seek a warrant to draw blood anyway. Whether to refuse depends on the situation, and there is no universal right answer.
Yes. If a prescription medication, even one taken as directed, impairs your normal mental or physical faculties, you can be charged with DWI. The same rule applies to over the counter medications that affect coordination, alertness, or judgment.
A DWI conviction stays on your criminal record permanently unless you become eligible for an order of nondisclosure. Texas allows nondisclosure for certain first time DWIs without aggravating factors, after a waiting period and compliance with conditions.
DWI applies to adult drivers operating a motor vehicle while intoxicated. DUI in Texas is a separate offense under the Alcoholic Beverage Code that applies to drivers under 21 who have any detectable alcohol in their system. Adults are not typically charged with DUI in Texas.
About Mark Brunner
Mark Brunner represents individuals facing criminal charges throughout Round Rock, Williamson County, and Central Texas. The firm's practice covers DWI defense, drug crimes, theft, fraud, appeals, and the full range of state and federal criminal matters.