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What is the punishment for a first time DWI in Texas?

Updated: Feb 20

If it's your first time being arrested for Driving While Intoxicated in Texas you could be facing different punishment ranges depending on the facts of your case. It isn't all just about the number of DWI's or other crimes you've had previously.


The first factor to consider is your age. If you are under 21 years old and are not considered legally intoxicated you could be facing a Class C ticket for "Driving Under the Influence" and a maximum penalty of only $500.


No matter what your age if you are operating a motor vehicle in a public place and are considered legally intoxicated then the maximum punishment you could face would be for a Class B Misdemeanor. A Class B misdemeanor has a maximum punishment of 180 days in jail and up to a $2,000 fine. What's different about DWI is that there is a MINIMUM jail time of 72 hours. Most Class B offenses in Texas do not have a minimum penalty with regard to jail time.


In order to be considered legally intoxicated the prosecutor has to prove that you have either lost the normal use of your mental or physical faculties because of alcohol or drugs or that you have an alcohol concentration of .08 or greater at the time of driving.


The punishment range goes up to a Class A if you have an alcohol concentration of 0.15 or greater at the time of testing or if you have a prior "conviction" for DWI. The maximum punishment for a Class A is 365 days in jail and up to a $4,000 fine. There is a statutory minimum punishment of 30 days in jail for a DWI second.


So if you have no prior convictions but have an alcohol concentration of 0.15 or greater you could be facing the same maximum jail time as someone who has been previously convicted.


But notice for the punishment range on a DWI first with an alcohol concentration of .15 or greater the Statute has some strange wording.


Sec. 49.04.  DRIVING WHILE INTOXICATED.  (a)  A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b)  Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c)  If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(d)  If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.  Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.55, eff. Sept. 1, 1995.
Amended by: 
Acts 2011, 82nd Leg., R.S., Ch. 960 (H.B. 1199), Sec. 2, eff. September 1, 2011.

The legislature declares that an offense of driving while intoxicated has a minimum punishment of 72 hours. But if it is shown on the trial (blah blah blah) .15 or more . . . the offense "is a class A misdemeanor." This would be interpreted as referring back to the Chapter 12 definition of a Class A misdemeanor and and there is no declaration of a minimum punishment range in Chapter 12. This kind of legal loophole is created when the legislature adds to a statute piecemeal like they did when they amended the DWI statute a number of years ago to increase the punishment range for alcohol concentrations of .15 or more.


Sec. 12.21.  CLASS A MISDEMEANOR.  An individual adjudged guilty of a Class A misdemeanor shall be punished by:
(1)  a fine not to exceed $4,000;
(2)  confinement in jail for a term not to exceed one year;  or
(3)  both such fine and confinement.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.  Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 1, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

If you are facing these mandatory minimum jail times seek the advice of an experienced criminal defense attorney. Make sure that they are familiar with the courts in the jurisdiction where you are being charged. Brian Foley Law PLLC has handled thousands of DWI cases over the past decade and can make the difference in your case. Call to claim your free consultation. 936-596-0407.


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