Arrested for Driving While Intoxicated: What’s My Punishment Going to Be? January 23, 2015

driving while intoxicated

DWI is by far the offense more people are arrested for than any other.

The question I get asked most often is, “What is my punishment going to be if I am convicted?” As with many legal questions, the answer is, “It depends.”

  • Do you have any prior convictions for DWI, or is this your first DWI charge?
  • Is your breath or blood test result 0.15 or higher?
  • Did you have an open alcoholic beverage container with you in the car when arrested?
  • Did you have a child (under 15 years of age) in the car with you at the time of your arrest?
  • Was there an accident where someone was injured (causing serious bodily injury)or killed?
  • Was the person injured in the accident (causing serious bodily injury) a peace officer, firefighter, or emergency services personnel while in the actual discharge of an official duty?
  • Was the person killed in the accident a peace officer, firefighter, or emergency services personnel while in the actual discharge of an official duty?
  • Did the person injured in the accident suffer serious bodily injury in the nature of a traumatic brain injury that results in a persistent vegetative state?
  • Do you have a prior conviction for Intoxication Assault?

Here are the punishment possibilities, depending on the answers to the above questions:

  • DWI-1st Offense, Test result under 0.15—Class B Misdemeanor (up to 6 months in jail and a fine up to $2,000.00).
  • DWI-1st Offense, Test Results 0.15 or higher—Class A Misdemeanor (up to 1 year in jail and a fine up to $4,000.00).
  • DWI-2nd Offense—Class A Misdemeanor (30 days to 1 year in jail and a fine up to $4,000.00).
  • DWI-3rd Offense–3rd Degree Felony (2-10 years in prison and a fine up to $10,000.00).
  • DWI with Child Passenger—State Jail Felony (6 months-2 years in the State Jail and a fine up to $10,000.00).
  • DWI with Open Container—increases the minimum jail time to 6 days and is a Class B Misdemeanor (6-180 days in Jail and a fine up to $2,000.00).
  • DWI with accident that injures someone (causing serious bodily injury)–3rd Degree Felony (2- 10 years in prison and a fine up to $10,000.00), except as noted below.
  • DWI with accident that causes serious bodily injury* in the nature of a traumatic brain injury that results in a persistent vegetative state–2nd Degree Felony (2-20 years in prison and a fine up to $10,000.00).
  • DWI with accident that causes serious bodily injury to a peace officer, firefighter, or emergency services personnel while in the actual discharge of an official duty–2nd Degree Felony (2-20 years in prison and a fine up to $10,000.00).
  • DWI with an accident that causes death to a person*–2nd Degree Felony (2-20 years in prison and a fine up to $10,000.00), except as noted below.
  • DWI with an accident that causes death to a peace officer, firefighter, or emergency services personnel while in the actual discharge of an official duty–1st Degree Felony (5-99 years or Life in prison, and a fine up to $10,000.00).
  • DWI or DWI with Child Passenger and a prior conviction for Intoxication Assault–3rd Degree Felony (2-10 years in prison and a fine up to $10,000.00).

*  The Offense described above as “DWI with an accident causing serious bodily injury,” is called “Intoxication Assault” in the Texas Penal Code. “Serious Bodily Injury” is defined as: “injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”

*  The Offense described above as “DWI with an accident that causes death to a person,” is called “Intoxication Manslaughter” in the Texas Penal Code.


If you have never before been convicted of a felony offense in this State, any other State or in a Federal Court, you are eligible for probation (also called “community supervision”). Depending on the offense charged, you will have to serve some jail time as a condition of Community Supervision:

  • DWI-2nd —not less than 72 hours in jail.
  • DWI-2nd –with prior conviction within 5 years—not less than 5 days in jail.
  • DWI with a prior conviction for Intoxication Assault—not less than 10 days in jail.
  • Intoxication Assault—not less than 30 days in jail.
  • Intoxication Manslaughter—not less than 120 days in jail.

If you do receive Community Supervision, the Terms and Conditions will also include:

  • Drug and Alcohol Evaluation
  • Driver Safety Education Class
  • Installation of an Ignition Interlock device on your automobile (except for DWI -1st offense with Breath or Blood test under 0.15)
  • Follow-up program recommended by the Drug and Alcohol Evaluation
  • Random urinalysis
  • Driver License Suspension (90 days to 1 year, depending on the offense charged)
  • Consume no alcohol or illegal drugs during the term of Community Supervision
  • Standard Terms and Conditions common to all offenses
  • Other special Terms and Conditions as determined by the Judge

Deferred Adjudication Community Supervision is not available for these DWI and alcohol/driving related offenses. Also be aware that a conviction for one of the above offenses cannot be the subject of an Expunction (unless your receive a pardon from the Governor) or a Petition for Non-Disclosure. These two subjects are addressed in another Blog Article on this website.

Any prior conviction for DWI, regardless of how old it is, may be used for enhancement of your punishment. Not discussed in this article are the consequences of prior final felony convictions involving penitentiary time, and how those may be used to further enhance a felony offense’s punishment. That is the topic of yet another blog article.

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