DWI 1st, 2nd and 3rd. What’s the difference in Texas?

What happens if I get another DWI? 

The Texas Penal Code allows for the state to enhance a DWI with each DWI you are convicted of. For example, if you have been previously convicted of DWI, which was a class B misdemeanor and you are arrested for a 2nd DWI, the state can bump that charge to a DWI 2nd, raising your punishment to a class A misdemeanor. 

When we have clients call to inquire for DWI, one of the first questions we ask, is have you been convicted of DWI before? At times, the answer is “well yes, but that was like 15 years ago.” Well, unfortunately, that doesn’t matter. Now, after the 2005 legislature, all DWI’s can be used to enhance your case, no matter how long ago you were convicted. 

What are the punishment ranges?  

A first time DWI, with no priors, no open containers, and a blood score under 0.15 is filed as a class B misdemeanor. A class B misdemeanor’s punishment can range from anywhere from 0 -180 days in jail and a fine not to exceed $2,000. But, in all honesty, you are more than likely going to receive probation for your first offense, if the state has a good case against you. 

If you are facing a second DWI charge, the state can enhance you to a class A misdemeanor, with a range of punishment of 0 – 1 year in jail and a $4,000 fine. 

And finally, if you have two prior DWI convictions, the state can enhance your new DWI charge to a 3rd degree felony with a punishment range of 2 – 10 years and a $10,000 fine. 

Mandatory Conditions.

If you the prosecutor is offering you probation for you DWI, know that there are some conditions of probation that are mandatory. These include a mandatory time of confinement for defendants with prior DWI convictions, a drug and alcohol dependency evaluation and possibly treatment based upon that evaluation, an alcohol education program, an ignition interlock if it’s your 2nd or more DWI or your breath or blood was over 0.15, and community service. These are non-negotiable and required by statute. So no matter how much you would like to argue these terms with the prosecutor, unfortunately the are mandated by the Texas Code of Criminal Procedure. 


If you do not want to take probation and you and your attorney have decided that trial is not your best option. You can choose to sit your case out. That is, you can sit the term out in jail for a negotiated number of days. If you choose this option, there are minimum terms of confinement for each level of offense. For example, if you are charged with a DWI open container the prosecutor cannot offer you, by law, less than 6 days of confinement. If you are charged with a class B misdemeanor, the minimum is 72 hours. Therefore, based on your charge, you will sit either 6 days or more or 72 hours or more. 


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