DWI Laws

“What does it mean to be “Intoxicated” under Texas Law?”

ANSWER: The Texas Penal Code §49.01(2) defines “Intoxication” as:

1. 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
2. Having an alcohol concentration of 0.08 or more.

“What must a person do to be charged with a DWI offense in Texas?”

ANSWER: The Texas Penal Code requires a person to be charged with a DWI Offense if the person:

1. Operates a motor vehicle;
2. In a Public Place,
3. While Intoxicated.

A person arrested for driving while intoxicated in Texas can be charged with the following under Section 49 of the Texas Penal Code:

A person arrested for a first offense DWI in Texas can be charged with either a class A or class B misdemeanor. The deciding factor is whether or not there is a blood or breath sample and if that sample is above a .15.

1. First Offense DWI: Class B Misdemeanor
   1. No Blood or breath test over .15
   2. Range of Punishment:
      1. 72 hours to 180 days in jail; OR
      2. Up to 2 years probation; AND
      3. Up to a $2,000 fine.
2. First Offense DWI: Class A Misdemeanor
   1. Breath or Blood Test OVER .15
   2. Range of Punishment:
      1. Up to 1 Year in jail; OR
      2. Up to 2 years probation; AND
      3. Up to a $4,000 fine.

A Person arrested for a Second DWI offense in Texas will be charged with a class A misdemeanor under the enhanced penalties of Section 49.09 of the Texas Penal Code.

Under Texas Law, a DWI Second Offense is punishable by:

1. 30 days to 1 YEAR in jail; OR
2. Up to 2 years probation; AND
   1. If probation is given, the person MUST spent 3 to 30 days in jail before the probation begins; AND
3. Up to a $4,000 fine.

NOTE: If a person is given probation for a DWI second Offense in Texas, the person MUST serve some jail time. This is known as jail as a “term and condition of probation” or “T&C” time. The length of time usually depends on the number of years between the first and second DWI.

1. If the previous DWI is more than 5 years old:
   1. Minimum “T&C” time is 3 days.
2. If the previous DWI is less that 5 years old:
   1. Minimum “T&C” time is 5 days.

However, the district attorney may ask for and/or the judge may require up to 30 days “T&C” time depending on the facts of the case.

Bottom line: If you are convicted of a Second Offense DWI in Texas, you MUST spend some time in jail 


A person arrested for a Third (or greater) DWI in Texas will be charged with a Third Degree Felony. A Third Degree DWI in Texas is punishable by:

1. 2 to 10 YEARS in confinement in the Texas Department of Criminal Justice; OR
2. A term of probation not to exceed 10 years; AND
   1. If probation is given, the person MUST spend 10 to 180 days in jail as a condition of probation; AND
3. Up to a $10,000 fine.

NOTE: If a person is given probation for a DWI Third Offense (or greater) in Texas, the person MUST serve some jail time. This is known as a “term and condition of probation” or “T&C” time. Typically, this is anywhere between 10 and 180 days in jail.

If a person is arrested for DWI AND has a child passenger UNDER the age of 15 at the time he or she is driving, then that person will be charged with a State Jail Felony under Texas Penal Code Section 49.045. The State jail Felony of Driving While Intoxicated with Child Passenger in Texas is punishable by:

1. 180 day to 2 YEARS in a Texas state jail facility; OR
2. Up to 5 years probation; AND
   1. If probation is given, the person MAY spend up to 180 days in jail as a condition of probation; AND
3. Up to a $10,000 fine.

NOTE: If a person is given probation for a DWI With Child Passenger in Texas, the person MAY serve some jail time. This is known as “terms and conditions of probation” or “T&C” time. Typically, this is anywhere between 3 and 180 days in jail.

Under Texas law, a person commits the crime of Intoxication assault if by accident or mistake:

1. Operates a motor vehicle while intoxicated and by reason of that intoxication causes serious bodily injury to another;
2. “Serious Bodily Injury” means injury that creates:
   1. a substantial risk of death; or
   2. that causes permanent disfigurement ; or
   3. causes protracted loss or impairment of the function of any bodily member or organ.

Intoxication Assault under Texas Law is a Third Degree Felony. A Third Degree DWI in Texas is punishable by:

1. 2 to 10 YEARS in confinement in the Texas Department of Criminal Justice; OR
2. A term of probation not to exceed 10 years; AND
   1. If probation is given, the person MUST spend up to 180 days in jail as a condition of probation; AND
3. Up to a $10,000 fine.

NOTE: If a person is given probation for a DWI Third Offense (or greater) in Texas, the person MUST serve some jail time. This is know as a “term and condition of probation” or “T&C” time. Typically, this is anywhere between 30 and 180 days in jail.

Under Texas law, a person commits the crime of Intoxication Manslaughter if the person:

1. Operates a motor vehicle in a public place; AND
2. Is intoxicated and by reason of that intoxication causes the death or another by accident or mistake.

Intoxicated Manslaughter in Texas is a Second Degree Felony and is punishable by:

1. 2 to 20 YEARS in the Texas Department of Criminal Justice; AND
2. Up to a $10,000 fine.

If you are arrested in Texas for an offense on driving while intoxicated, you may be subject to certain conditions of bond.

A bond is what allows a citizen to be released from jail after an arrest. Bonds come in many forms such as; cash bonds, surety bonds (a bail bond company), or an attorney writ bond just to name a few.

A Judge may but certain conditions on a citizen before granting a bond for a person arrested of a DWI offense in Texas.

IF a person is charged with:

1. A Second (or greater) DWI Offense; OR
2. A Felony DWI offense; OR
3. A Driving record shows a prior arrest for an intoxication offense; OR
4. If the person was involved in an accident in the current arrest; OR
5. The person gives a blood or breath test and the results are over a .15.

Under the above scenarios, Judges in Texas may place the following bond conditions on the citizen arrested:

1. An alcohol monitoring device, either installed in the persons vehicle, home or on the person’s body (an ankle monitoring device);
2. Pre-trial monitoring. This means you must meet with a pre-trial probation officer on a monthly basis so that that person may monitor you and your alcohol monitoring device while on probation;
3. No Alcohol or drug use while on probation;
4. Random urinalysis tests while on probation.
5. Any other condition the Judge deems appropriate.

Conditions of probation for a DWI or intoxicated driving offense in Texas vary from County to County and from Judge to Judge. However, the following conditions will usually be required if you are placed on probation for a DWI or intoxicated driving defense in Texas.

1. A fine up to $2,000 for a class B misdemeanor, up to $4,000 for a class A misdemeanor, or up to $10,000 for a felony DWI offense;
2. Court costs. These vary from $200 up to $1,000;
3. Monthly meetings with a probation officer;
4. Monthly probation fees. These vary but are normally $100 per month;
5. A DWI Education course;
6. A Victim Impact Panel;
7. A Substance Abuse evaluation and any conditions from that evaluation;
8. Random Urinalysis tests. You probation office can request as many of these as he or she wants and they normally cost $60 per test,
9. No alcohol for the entire probation period. No means, NO ALCOHOL AT ALL;
10. Community service. The number of hours vary from 24 to 200 hours depending on weather it is a misdemeanor of felony.
11. Travel restrictions. You may be prohibited from leaving the state or country while on probation;
12. An alcohol monitoring device installed in any vehicle you drive or in your home or on your body (an ankle monitoring device).
13. ANY other condition the Judge requires.

All too often, attorneys do not tell their clients about DWI surcharges before they plea to or after they are found guilty of a DWI in Texas. Under Texas law, if you are convicted of a DWI in Texas you will be subjected to the following surcharges from the Texas Department of Public Safety for 3 YEARS:

1. $1,000 per year for 3 years for a class B misdemeanor;
2. $1,500 per year if it is a second offense DWI; OR
3. $2,000 a year if there is a blood or breath score over .16.

If you or a loved one has been arrested or charged with a DWI or DUI within Collin County, Texas and the surrounding cities of McKinney, Allen, Frisco, Richardson, Dallas, Denton, Wylie, Addison, Prosper, Celina and The Colony, Texas and you need the help of an experienced drunk driving defense lawyer, call the Law Offices of Biederman & Burleson today at (866) 439-2182 to schedule a free, no-obligation consultation with an experienced Plano, Texas DWI defense trial attorney.