Driving while intoxicated (DWI) is a crime in Texas, but it's not always a felony. Being convicted of a crime is never a good thing, but being convicted of a felony impacts a person for a lifetime. Whether a particular DWI is a felony in Texas depends on two factors: the individual's prior record and the circumstances of the DWI charge.
Felonies and Misdemeanors in Texas
Felonies are the most serious crimes in Texas. As in most states, a felony in Texas is defined as a crime for which the punishment can exceed a year in prison. The felony category includes all the worst crimes including murder, rape, treason and assault. Persons with a felony on their record cannot own a gun and are excluded from some types of jobs and educational programs. They also may have trouble finding housing.
A misdemeanor is a less serious crime than a felony. It is defined as a crime for which punishment cannot exceed a year in jail. In Texas, there are three categories of misdemeanors: Class A, B and C, with Class C being the least serious misdemeanor, and Class A the most serious.
The least serious of any type of crime is called an infraction, and these are considered so minor that the police usually don't arrest a person for them. Jaywalking, for example, is an infraction. These minor crimes are usually punished by fines and sometimes with community service.
Texas DWI Laws
The crime of driving while intoxicated (DWI) in Texas is described in Penal Code Section 49.031. It includes two definitions of intoxication. The first is a person driving while their faculties are impaired by use of alcohol or drugs. (Drugs includes both illegal drugs and legal drugs.) Any amount of alcohol or drugs is sufficient for this type of DWI as long as it results in impairment of faculties.
The second definition of intoxication is a "per se" DWI offense, which occurs when a person drives a motor vehicle with a blood alcohol concentration of 0.08 percent or higher. No additional proof of intoxication or impairment is necessary for a per se DWI; there is no similar BAC limit for drugged driving.
These two types of DWIs are treated equally in Texas in terms of category of crime and punishment. That is, the classification of a DWI as a misdemeanor or felony does not depend on whether the DWI is based on impaired faculties or if it is a per se DWI. Instead, the primary factor that determines whether a DWI is a misdemeanor or a felony is the person's driving history, that is, how many prior convictions the person has.
Misdemeanor DWIs in Texas
Both first-offense DWIs and second-offense DWIs are misdemeanors. A first DWI conviction is a Class B misdemeanor, punishable by at least 72 hours, or at most, 180 days of jail time, along with a driver's license suspension. A second conviction is a Class A misdemeanor, punishable by 30 days to a year in jail. However, a third DWI conviction is not a misdemeanor, but a felony.
It's important to understand, when counting prior DWIs, that other criminal convictions can also count as priors. Texas makes it a crime for a person to operate a boat while intoxicated, fly an airplane while intoxicated and operate (or assemble) amusement park rides while intoxicated. A conviction of any one of these – including DWIs – is a prior offense for any other. That is, if a person is convicted of boating while intoxicated in year one and flying a plane while intoxicated in year two, a DWI in year three is the third offense, not a first-time offense. As such, it will be charged as a felony.
Felony DWIs in Texas
A third DWI conviction in Texas is a third-degree felony. Anyone convicted of a third DWI can face fines of up to $10,000 and two to 10 years in state prison or penitentiary. A fourth DWI conviction can be charged as a second-degree felony, punishable by a fine up to $10,000 and two to 20 years in prison. A subsequent DWI can be charged as an enhanced felony with a potential prison term of up to 25 years.
A DWI is also a felony in Texas if there is a passenger in the car who is under the age of 15. This is termed DWI with child passenger and is charged as child endangerment. Someone convicted of this felony can be punished with up to two years in prison. This can happen even on the first or second DWI offense.
Other Felony DWIs in Texas
The number of prior drunk driving offenses is only one factor tipping a DWI into the felony category. Another is the circumstances of the offense. The punishments discussed above are for simple DWIs, that is, when drivers were stopped by the police for erratic driving or at a drunk driving checkpoint before any serious accident occurred. But if an impaired or intoxicated driver causes an accident that seriously injures or kills another person, the DWI is always charged as a felony.
A driver who is arrested for a DWI after an accident that caused serious injury to another person is charged with intoxication assault. This can happen if the DWI car hit another car and injured the other driver or a passenger. It can happen if a passenger in the DWI car was injured. It can also happen if the DWI car hits a pedestrian or cyclist. If impairment or intoxication was the cause of the accident, intoxication assault will be charged as a third-degree felony.
If any of these scenarios cause not just serious injury, but death, the crime is intoxication manslaughter and is charged as a second-degree felony.
Need for Legal Advice and Representation
Anyone charged with a felony DWI should consider hiring a DWI attorney to provide a defense to the charges. In view of the lifetime consequences of a DWI felony conviction, it is critical to take every action possible to reduce the penalties and/or the charges. An experienced Texas DWI lawyer knows the ropes and is the best situated to assist in preparing a defense.
Possible defense strategies differ from case to case. It is sometimes possible to challenge the results of chemical tests, like breathalyzer and blood tests. An experienced criminal defense attorney will know how to challenge the blood alcohol concentration (BAC) test results or provide alternative (and legal) explanations for a high BAC level. They can also cross-examine the police and any witnesses about their testimony and point out weaknesses or contradictions.
If nothing else, a criminal defense lawyer may be able to negotiate a plea bargain to reduce the charge to a misdemeanor. While no attorney can guarantee to get a charge reduced or achieve a not-guilty verdict, a driver facing felony charges should not attempt go it alone at a DWI trial.
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.