Enhanced Penalties for DWI

The Woodlands, Texas DWI Attorney Brian Foley - Board Certified in Criminal Law, discusses enhanced penalties for DWI charges.  If you have been charged with a DWI or other crime in The Woodlands, Texas, Conroe, Texas, or Montgomery County, Texas you owe it to your family and your future to seek experienced counsel.   

What are Enhanced Punishments for DWI?
A DWI is normally a Class B offense if it is your first time being arrested for that crime.  If you provide an alcohol specimen of breath or blood greater than or equal to .015 then the offense is a Class A misdemeanor.  Both of these are found under Texas Penal Code 49.04.  When Lawyers refer to Enhanced punishments for DWI what we are really talking about is section 49.09 of the Texas Penal Code

1. DWI - Second: If the State can prove at trial that you have a prior conviction for DWI (or a similar offense from another state) then a DWI that would normally be a Class B will become a DWI 2nd offense punishable as a Class A with a minimum term of confinement of 30 days in Jail.  This is different from a regular Class A offense which has a minimum jail time of 72 hours.  

2. Third Degree Felony DWI: If the State can prove you have been previously convicted of two or more prior DWI cases then the punishment will be that of a Third Degree Felony 2-10 years in Prison or probation up to 10 years and a fine of up to $10,000.  If you have previously been convicted of Intoxication Manslaughter (a DWI that caused the death of another by accident or mistake) then any new DWI charge will automatically be enhanced to a Third Degree. 

3. Enhanced Intoxication Assault: If the person who received serious bodily injury caused by intoxication related car wreck was a firefighter or emergency medical services personnel performing their official duties then the offense is enhanced to a 2nd degree felony 2-20 years in prison and up to a $10,000 fine.   If the person is a peace officer or judge discharging an official duty then the offense is enhanced to a 1st Degree felony 5-99 years or life in prison and up to a $10,000 fine. 

4. Enhanced Intoxication Manslaughter:  Intoxication Manslaughter changes from a second degree to a first degree if the person who died as a result was Emergency medical services personnel a peace officer or a judge discharging an official duty.  This means that if you kill a judge in an intoxication manslaughter case while the judge was on the way to the movies then its a 2nd Degree Felony.  If you kill them while they were performing a roving blood warrant service then it would be a 1st Degree.  More likely these cases happen when a police chase occurs during a pursuit and a police officer is killed. 

5. Traumatic Brain Injury: If Intoxication Assault causes traumatic brain injury that results in the person being in a persistent vegetative state becomes a 2nd degree felony.  

6. Deferred Adjudication and Straight Probations are convictions: These enhanced punishments often hinge on the existence of a prior conviction.  The word conviction under this statute means any time you plead guilty before the judge.  For example a deferred adjudication probation may not result in a conviction for purposes of job applications or other purposes may still be used to enhance a future conviction.  This is also true for straight probations and fine only punishments. 

7. Subsection (h):  Subsection (h) is the most confusing part of DWI Law that I can think of.  It only applies to a person convicted of a second or subsequent DWI within five years of the date on which the most recent preceding offense was committed.  The court must order an ignition interlock device be installed on any vehicle the defendant drives  for one year after the license suspension incurred from the DWI. 
 
Can you have punishments stacked in an intoxication assault or manslaughter case?
Section 3.03 of the Texas Penal Code allows for sentences to be stacked in Intoxication Assault or Intoxication Manslaughter cases.  That means that if a DWI crash kills 4 people then you could be facing up to 80 years in prison if the sentences are stacked at 20 years each. 

What happens if you have an open container enhancement?
The open container enhancement changes the minimum term of confinement on a Class B misdemeanor from 72 hours to 6 days as a minimum.  This does not prevent you from avoiding jail time through taking probation.  Texas Penal Code 49.04.

Texas Penal Code 49.09

Sec. 49.09.  ENHANCED OFFENSES AND PENALTIES.  
(a)  Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
 
(b)  An offense under Section 49.04 (DWI), 49.045(DWI with child), 49.05(Flying While Intoxicated), 49.06(Boating While Intoxicated), or 49.065(Assembling or Operating an Amusement Ride while Intoxicated) is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
 
     (1)  one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
      (2)  two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
 
(b-1)  An offense under Section 49.07 is:
      (1)  a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a firefighter or emergency medical services personnel while in the actual discharge of an official duty; or
       (2)  a felony of the first degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer or judge while the officer or judge was in the actual discharge of an official duty.
 
(b-2)  An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).
 
(b-3)  For the purposes of Subsection (b-1): (1)  "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code. (2)  "Firefighter" means: (A)  an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or (B)  a member of an organized volunteer fire-fighting unit that: (i) renders fire-fighting services without remuneration; and (ii) conducts a minimum of two drills each month, each at least two hours long.
 
(b-4)  An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state.
 
(c)  For the purposes of this section:
     (1)  "Offense relating to the operating of a motor vehicle while intoxicated" means:
          (A)  an offense under Section 49.04 or 49.045;
      (B)  an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;
         (C)  an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;
          (D)  an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;
         (E)  an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle;  or
          (F)  an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.
 
     (2)  "Offense of operating an aircraft while intoxicated" means:
         (A)  an offense under Section 49.05;
     (B)  an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;
       (C)  an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;
       (D)  an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft;  or
        (E)  an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.
     
     (3)  "Offense of operating a watercraft while intoxicated" means:
      (A)  an offense under Section 49.06;
   (B)  an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;
      (C)  an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;
    (D)  an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft;  or
      (E)  an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.
 
(4)  "Offense of operating or assembling an amusement ride while intoxicated" means:
        (A)  an offense under Section 49.065;
    (B)  an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride;  or
      (C)  an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.
 
(d)  For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.
 
(e)  Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.

(f)  Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
 
(g)  A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.  For purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.
 
(h)  This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed.  The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device.  The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date.  If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation.  The Department of Public Safety shall approve devices for use under this subsection.  Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval.  Failure to comply with an order entered under this subsection is punishable by contempt.  For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed.  To the extent of a conflict between this subsection and Subchapter I, Chapter 42A, Code of Criminal Procedure, this subsection controls. Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.  Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.56, eff. Sept. 1, 1995;  Acts 1995, 74th Leg., ch. 318, Sec. 21, eff. Sept. 1, 1995;  Acts 1999, 76th Leg., ch. 1364, Sec. 12, 13, eff. Jan. 1, 2000;  Acts 2001, 77th Leg., ch. 648, Sec. 1, 2, eff, Sept. 1, 2001;  Acts 2001, 77th Leg., ch. 969, Sec. 3, eff. Sept. 1, 2001;  Acts 2003, 78th Leg., ch. 787, Sec. 2, eff. Sept. 1, 2003;  Acts 2003, 78th Leg., ch. 1275, Sec. 2(117), eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 996 (H.B. 51), Sec. 1, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 996 (H.B. 51), Sec. 3, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 662 (H.B. 1212), Sec. 4, eff. September 1, 2007. Acts 2011, 82nd Leg., R.S., Ch. 960 (H.B. 1199), Sec. 3, eff. September 1, 2011. Acts 2015, 84th Leg., R.S., Ch. 770 (H.B. 2299), Sec. 2.84, eff. January 1, 2017. Acts 2015, 84th Leg., R.S., Ch. 1067 (H.B. 2246), Sec. 2, eff. September 1, 2015. Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 23.010, eff. September 1, 2017. Acts 2017, 85th Leg., R.S., Ch. 440 (H.B. 2908), Sec. 5, eff. September 1, 2017. Acts 2019, 86th Leg., R.S., Ch. 1298 (H.B. 3582), Sec. 7, eff. September 1, 2019.

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