Every Felony DWI in Texas Explained
Each year, thousands of Texans face felony DWI charges under Chapter 49 of the Texas Penal Code. While most DWI cases are misdemeanors, certain circumstances elevate these charges to felonies, carrying potential prison sentences and life-changing consequences. Understanding the specific laws, penalties, and defenses for each type of felony DWI is crucial for anyone facing these serious charges.
Quick Navigation
- Overview of Texas DWI Laws
- DWI with Child Passenger (§ 49.045)
- Felony DWI by Repetition (§ 49.09)
- Intoxication Assault (§ 49.07)
- Intoxication Manslaughter (§ 49.08)
- Penalties and Enhancements
- Probation Possibilities
- Defense Strategies
Overview of Texas DWI Laws
Chapter 49 of the Texas Penal Code governs intoxication offenses. Under § 49.04, a basic DWI occurs when a person operates a motor vehicle in a public place while intoxicated. However, several sections of Chapter 49 elevate DWI to a felony under specific circumstances.
DWI with Child Passenger (Penal Code § 49.045)
Under § 49.045, driving while intoxicated becomes a felony if a child passenger is present. Specifically, this section applies when:
- The operator is intoxicated (under § 49.01 definitions)
- Operating a motor vehicle in a public place
- With a passenger younger than 15 years of age
This offense is a state jail felony, regardless of prior convictions. Key elements prosecutors must prove:
- The defendant was operating the vehicle
- Intoxication at the time of operation
- Presence of child under 15
- Knowledge of child’s presence (though this is often presumed)
Punishment range includes:
- 180 days to 2 years in state jail
- Fine up to $10,000
- Driver’s license suspension
- Mandatory ignition interlock upon release
Felony DWI by Repetition (Penal Code § 49.09)
Section 49.09 contains crucial enhancement provisions that elevate a DWI to a felony based on prior convictions. A DWI becomes a felony when the defendant has:
- Two prior convictions for any combination of:
- DWI (§ 49.04)
- DWI with Child Passenger (§ 49.045)
- Flying While Intoxicated (§ 49.05)
- Boating While Intoxicated (§ 49.06)
- Assembling/Operating Amusement Ride While Intoxicated (§ 49.065)
- OR one prior conviction for Intoxication Manslaughter (§ 49.08)
Critical aspects of § 49.09:
- No time limit on prior convictions (“forever jurisdictional”)
- Out-of-state convictions count
- Each prior must be properly proven with specific evidence
Intoxication Assault (Penal Code § 49.07)
Section 49.07 defines intoxication assault as causing serious bodily injury to another by reason of intoxicated operation of:
- Motor vehicle in a public place
- Aircraft
- Watercraft
- Amusement ride
“Serious bodily injury” under § 49.07(b) means:
- Injury creating substantial risk of death
- Serious permanent disfigurement
- Protracted loss or impairment of function of any bodily member or organ
Base punishment (third-degree felony):
- 2 to 10 years in prison
- Fine up to $10,000
- Enhanced to second-degree felony if victim is peace officer, firefighter, or emergency medical personnel
Intoxication Manslaughter (Penal Code § 49.08)
Section 49.08 defines intoxication manslaughter as:
- Operating a motor vehicle, aircraft, watercraft, or amusement ride while intoxicated
- Causing the death of another by reason of that intoxication
- Death can be caused directly or indirectly
- Accident or mistake is no defense
Key elements prosecutors must prove:
- Intoxication at time of operation
- Causation between intoxication and death
- Death occurred while operating vehicle in public place
Punishment as second-degree felony:
- 2 to 20 years in prison
- Fine up to $10,000
- Separate charge possible for each death
Penalties and Enhancements Under Chapter 49
Offense | Penal Code | Classification | Prison/Jail Time | Fine | Notes |
---|---|---|---|---|---|
DWI with Child | § 49.045 | State Jail Felony | 180 days – 2 years | Up to $10,000 | State jail facility |
Third DWI | § 49.09 | Third-Degree Felony | 2 – 10 years | Up to $10,000 | Prison facility |
Intoxication Assault | § 49.07 | Third-Degree Felony | 2 – 10 years | Up to $10,000 | Second-degree if victim is first responder |
Intoxication Manslaughter | § 49.08 | Second-Degree Felony | 2 – 20 years | Up to $10,000 | Separate charge possible per death |
Enhancement Provisions
- Prior prison trip: Enhances to next degree
- Multiple victims: Allows stacking of sentences
Category | Prior Convictions | Classification | Punishment Range | Fine | Notes |
---|---|---|---|---|---|
Repeat Offender (Third DWI) | Two priors | Third Degree Felony | 2 – 10 years | Up to $10,000 | No time limit on prior convictions |
Repeat Offender with One Enhancement | Two priors + one prison trip | Second Degree Felony | 2 – 20 years | Up to $10,000 | Prior prison trip for any felony |
Habitual Offender | Two priors + two prison trips | First Degree Felony | 5 – 99 years or Life | Up to $10,000 | Prior prison trips for any felony |
Intoxication Assault | N/A | Third Degree Felony | 2 – 10 years | Up to $10,000 | Enhanced if victim is peace officer |
Intoxication Manslaughter | N/A | Second Degree Felony | 2 – 20 years | Up to $10,000 | Separate charge per death |
Important Notes on Repeat/Habitual Offender Status:
- Prior Convictions:
- No statute of limitations on prior DWIs
- Out-of-state convictions count
- Must be final convictions unless probation completed
- Can include other intoxication offenses (boating, flying, etc.)
- Stacking Provisions:
- Multiple victims can result in consecutive sentences
- Judge has discretion on stacking
- Each death/injury can be separate charge
- No limit on total combined sentence
Parole Eligibility:
- Third DWI: Eligible after serving 1/4 of sentence
- Intoxication Assault: Eligible after serving 1/4 of sentence
- Intoxication Manslaughter: Must serve 1/2 of sentence or 30 years, whichever is less
- Habitual Offender: Must serve actual time based on sentence length
Probation Possibilities Under Chapter 49
Mandatory Jail Time as Condition
Offense | Minimum Days in Jail as COP | Maximum Days in Jail as COP |
---|---|---|
DWI | 0 | 30 |
DWI BAC ≥ .15 | 0 | 30 |
DWI with Open Container | 0 | 30 |
DWI Second | 72 | 30 |
DWI Child Passenger | 0 | 180 |
DWI Felony Repetition | 0 | 180 |
Intoxication Assault | 30 | 180 |
Intoxication Manslaughter | 120 | 180 |
Complete Guide to Texas DWI Probation Conditions (Article 42A.301)
Texas Code of Criminal Procedure Article 42A.301 establishes the framework for DWI probation conditions, with specific requirements for felony cases. Here’s everything you need to know about probation conditions for Texas DWI offenses.
Jail Time Requirements for DWI Probation
Offense | Minimum Days in Jail as COP | Maximum Days in Jail as COP | Special Requirements |
---|---|---|---|
DWI | 0 | 30 | — |
DWI BAC ≥ .15 | 0 | 30 | — |
DWI with Open Container | 0 | 30 | — |
DWI Second | 72 | 30 | Mandatory minimum applies |
DWI Child Passenger | 0 | 180 | May be served in increments |
DWI Felony Repetition | 0 | 180 | Front-loaded service typical |
Intoxication Assault | 30 | 180 | Must serve minimum 30 days |
Intoxication Manslaughter | 120 | 180 | Must serve minimum 120 days |
Required Evaluations and Programs
1. Substance Abuse Evaluation (SAE)
A Substance Abuse Evaluation (SAE) is a mandatory assessment conducted by a licensed chemical dependency counselor within the first 30 days of DWI probation to evaluate the defendant’s substance use patterns and determine appropriate treatment needs. The recommendations from this evaluation are binding conditions of probation, meaning the defendant must complete any recommended treatment programs, which could range from education classes to intensive outpatient treatment or even residential programs in severe cases.
- Mandatory completion within 30 days of probation start
- Conducted by licensed chemical dependency counselor
- Evaluates:
- Substance use patterns
- Addiction risk factors
- Treatment needs
- Recommendations are mandatory – must complete all prescribed treatment:
- Intensive outpatient treatment
- Individual counseling
- Group therapy sessions
- AA/NA meetings
- Residential treatment if required
2. Victim Impact Panel (VIP)
- Required attendance at court-approved program
- 2-3 hour session featuring:
- DWI crash survivors
- Victims’ family members
- Emergency responders
- Must complete within first 6 months
- Proof of completion required
3. DWI Education Program
- State-approved program required by Transportation Code
- Must complete within 180 days
- Failure results in automatic license suspension
Monitoring Devices and Testing
1. Ignition Interlock Device
Most judges require interlock devices for all felony DWI cases. Requirements typically include:
- Installation within 30 days of probation start
- Required on all operated vehicles
- Monthly calibration checks
- Photo verification with each test
- Violation reporting to probation officer
- Detailed driving log maintenance
2. SCRAM Monitoring
Increasingly required by judges, especially for:
- High BAC cases (.15 or above)
- Multiple prior offenses
- Interlock violations
SCRAM requirements include:
- 24/7 ankle monitor wear
- 30-minute testing intervals
- Immediate violation reporting
- Common requirement periods:
- Initial 30-90 days
- Post-violation periods
- Entire probation in some cases
3. Additional Testing Requirements
- Random drug/alcohol testing through:
- Urinalysis
- Blood testing
- Hair follicle analysis
- Breath testing
- Typical frequency:
- 2-3 times weekly initially
- May decrease with compliance
- Increases after violations
Community Service Requirements
- Mandatory hours based on offense level
- Maximum 1,000 hours per Article 42A.301
- Must maintain log and supervisor verification
Employment and Reporting Requirements
- Must maintain steady employment or school enrollment
- Regular probation officer meetings
- Cannot leave county without permission
- Must report any law enforcement contact
Financial Obligations
Monthly costs typically include:
Requirement | Typical Cost | Frequency |
---|---|---|
Probation Fees | $60-80 | Monthly |
Interlock Device | $70-100 | Monthly |
SCRAM Monitor | $300-450 | Monthly |
Drug/Alcohol Testing | $15-25 | Per test |
Treatment Programs | Varies | As required |
Education Courses | $70-200 | One-time |
Court’s Modification Authority
Under Article 42A.301, courts retain authority to:
- Modify conditions during probation
- Add requirements based on violations
- Extend monitoring periods
- Revoke probation for violations
Defense Strategies Under Chapter 49
Constitutional Challenges
- Illegal stop/detention (Fourth Amendment)
- Miranda violations (Fifth Amendment)
- Blood draw issues (Fourth Amendment)
Statutory Challenges
- Operation not proven
- Public place not established
- Causation issues (assault/manslaughter)
- Prior conviction proof problems
Scientific/Technical Defenses
- Blood test reliability
- Breath test accuracy
- Medical conditions affecting tests
- Retrograde extrapolation challenges
Contact an Experienced Texas Felony DWI Lawyer
If you’re facing any felony intoxication offense under Texas Penal Code Chapter 49, you need experienced legal representation immediately. Our defense team thoroughly understands these complex statutes and has a proven track record defending against felony DWI charges.
Call 214-903-4000 for a free consultation with our experienced Texas felony DWI defense team.