Why Some Texas DWI Charges Are Misdemeanors and Others Are Felonies

Some folks walk into my office charged with DWIs that are misdemeanors and others are charged with DWIs that are felonies.  Of course, they usually ask me what makes the difference. Below, without offering legal advice, I try to explain in simple terms what makes the difference.

Let’s begin by first explaining exactly what is a DWI.  The acronym DWI stands for driving while intoxicated.  Under Texas law, a person is guilty of driving while intoxicated if he operates a motor vehicle in a public place while intoxicated.  § 49.04 TPC.  Texas law defines intoxication as:

  1. Not having the normal use of one’s mental and physical faculties because of the use of drugs or alcohol; or
  2. Having a blood alcohol concentration (BAC) of 0.08 or greater.  § 49.01 TPC.

With that definition in mind, generally a simple first-time DWI charge is a Class-B misdemeanor.  However, a DWI charge can be enhanced to a class-A misdemeanor or felony in several situations.  For example, a DWI may be enhanced to a 2nd degree felony if a driver is arrested for a DWI and due to the intoxication caused another person’s death (§ 49.08).  If the victim was a peace officer, a firefighter, or emergency medical services personnel who was in the actual discharge of their official duty the DWI may be enhanced to a 1st degree felony, which carries five to ninety-nine years or life in prison.

In other instances, a driver may be charged with a DWI that is enhanced to a 3rd degree felony if he is arrested for a DWI and due to the intoxication caused another person serious bodily injury (§ 49.07 TPC).  Here again, if the victim was a peace officer, a firefighter, or emergency medical services personnel the DWI may be enhanced to a 2nd degree felony, which carries two to twenty years in prison.

Additionally, a driver who is arrested for a DWI that has one or more previous DWI convictions may be charged with an enhanced DWI if any of the following factors are true.  First, the DWI may be enhanced to a 3rd degree felony if the driver was once previously convicted of intoxication manslaughter or similar law in another state.  Second, it may be enhanced to a 3rd degree felony if the driver has two previous DWI convictions.  § 49.09.  Third, it may be enhanced to a Class-A Misdemeanor if the person was convicted of a simple first time DWI in the past.  Lastly, it may be enhanced to a state jail felony if a child that is 15-year-old or younger was a passenger in the car when the driver was arrested.

Hopefully, this helps you understand why some DWIs are misdemeanors and others are felonies.  However, my advice to anyone that’s facing a DWI, whether misdemeanor or felony, is to seek out the services of an experienced and competent DWI criminal defense attorney.  Additionally, a person who has a problem with alcohol or drugs should seek help.  Good luck!

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