In state of Texas, any driving while impaired (DWI) charge is a serious matter, and repeated convictions for driving while intoxicated bring additional fines and penalties. While it is easy to focus on the Texas legal limit for blood alcohol concentration (BAC), it is entirely possible to be convicted of a DWI in this state without an over-the-limit BAC. And aggravating circumstances can bump up a DWI from a Class B misdemeanor to a more serious charge. That's why anyone driving in Texas needs to get an overview of the drunk/drugged driving laws while finding out the penalties for a second-offense DWI.
Texas DWI Laws
Anyone arrested for a second offense DWI in Texas needs to understand the law and procedure applied to these crimes. The elements of the offense of driving while intoxicated are set out in the Texas Statutes Penal Code Section 49.01. They include operating a vehicle on a public road in Texas while intoxicated.
Intoxication is defined as either having a blood or breath alcohol concentration of 0.08 percent or not having the normal use of mental or physical faculties because of the use of alcohol or drugs. Drugs in this context are not limited to illegal drugs, but include any controlled substance that impairs a driver's faculties.
Administrative Penalties for Second DWI Charges
Criminal penalties are imposed in Texas when someone is convicted of a second DWI. But administrative penalties are imposed even before a person goes to trial on the driving charge.
Anyone lawfully arrested of a second DWI in Texas can find themselves with a driver's license suspension and fees imposed by the Department of Motor Vehicles (DMV), regardless of whether they are ultimately convicted of a DWI charge. If a driver fails a chemical test – that is, tests at over the legal limit – the police will confiscate their driver's license. If the driver doesn't request a DMV hearing within 15 days of the arrest, the DMV suspends their license for 12 months.
Similarly, if the driver refuses to take a chemical test, it is a violation of Texas implied consent laws under which every driver is deemed to consent to chemical tests. The DMV will impose a two-year license suspension for refusal.
Increased Penalties for Subsequent DWIs
The least serious criminal penalties for a Texas DWI apply to first offenses. Penalties increase for each subsequent DWI without regard to when it occurred in relation to priors. That is, in some states a second DWI increases penalties only if it occurs within a given number of years of the prior DWI. In Texas, there is no time limit, so a second DWI is subject to increased sanctions regardless of when the first conviction happened.
It should also be noted that prior offenses for the purpose of penalties do not have to be DWI convictions. Texas also makes it a prior crime to:
- Operate aircraft while intoxicated.
- Operate watercraft while intoxicated.
- Operate or assemble an amusement ride while intoxicated.
Conviction of any of these offenses counts as a prior for the purposes of a subsequent DWI. For example, if a person gets a DWI one year and a boating while intoxicated (BWI) conviction the next year, another DWI in year three will be a third offense, not a second one.
Penalties for a Simple Second DWI Offenders
In Texas, like in most states, less serious crimes are termed misdemeanors and more serious crimes are felonies. A crime is categorized as a misdemeanor if the maximum potential jail time is a year or less. A crime is categorized as a felony if the maximum potential jail sentence is more than a year.
A second DWI conviction, like an initial conviction, is a Class B misdemeanor in Texas. The core penalties for the offense include a fine of between $2,000 and $4,000 and jail time of at least 30 days and not more than a year. The court usually imposes a period of probation, called community control. For a second offense DWI in Texas, that includes at least 80 hours, but not more than 200 hours of community service.
Texas also suspends the driver's license for at least six months, but not more than two years for a second offense, in additional to any administrative suspension. It imposes a surcharge in addition to the fine of up to $2,000 per year for three years if the driver wishes to keep their license.
An individual convicted of a second DWI is mandated to attend and complete an approved DWI education class within the first six months after conviction. They are usually required to undergo a substance abuse evaluation and to complete all recommended follow up treatments. All of this incurs costs and fees that the driver must pay.
Aggravating Circumstances in Texas
These penalties apply to an individual convicted of a simple DWI. That means a DWI without aggravating circumstances and without injury to another person. But a second DWI can be a more serious crime with increased penalties if additional factors apply.
If a driver is stopped by law enforcement and the arresting officer finds an open container of alcohol in the vehicle, this is, in and of itself, a misdemeanor. And if, in addition, the driver is intoxicated, an open container is considered an aggravating circumstance and increases the DWI penalties.
If the driver takes a breathalyzer or other chemical test that establishes a BAC of over 0.15 percent, the high BAC is also an aggravating circumstance, and fines and jail time will increase. Likewise, if the DWI driver is responsible for an accident that causes minor property damage, the sanctions for conviction increase.
Second-Offense DWI a Felony
Other aggravating circumstances can transform a second DWI into a felony. If the driver, when arrested for drunk driving, is carrying a child passenger, described as anyone who is under the age of 15, the charge is DWI With Child Endangerment. It is a felony and can result in potential fines of up to $10,000 and potential imprisonment up to two years.
If the driver's intoxication resulted in serious bodily injury to another person, the crime is called intoxication assault, punishable by several years in prison. If it results in the death of another individual, it is called intoxication manslaughter, which is punishable by up to 20 years in prison.
Second DWI Under 21 Years Old
A special drinking and driving law called the zero tolerance law applies to drivers under 21. Young drivers can be found guilty of a DWI if any discernible amount of alcohol is found in their blood or breath. A driver convicted of breaking the zero tolerance law will suffer administrative penalties. A first offense results in a revocation of their license for 60 days, and a second offense results in a 120-day suspension.
Young drivers who are intoxicated or whose BAC is over 0.08 percent are guilty of a regular DWI, and the same penalties apply as for adults.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.