Texas DWI Penalties by Offense Level

The Penalty Ladder in One Table

Two notes the table cannot hold. Intoxication manslaughter rises to a first-degree felony, punishable by 5 to 99 years or life, when the person killed was a peace officer, a firefighter, or emergency medical services personnel acting in the line of duty. And a felony DWI can be pushed above the third degree by prior prison sentences for other offenses: one prior penitentiary trip can raise it to a second-degree felony, two can raise it to a first.

First Offense: Class B

This is the baseline charge for a first-offense DWI with no aggravating factors and a BAC below 0.15 percent. Confinement runs from 72 hours to 180 days in county jail, and the fine can reach $2,000. The 72 hours is not a typical sentence; it is the statutory floor on a conviction, and community supervision is typically granted for first offenders rather than a jail sentence. What that supervision requires is covered on Probation.

The important thing about the Class B tier is how easily a case leaves it. A single test number, a single open container, a single passenger’s age moves the same night of driving into a different row of the table above. What a first charge looks like end to end is on First Offense DWI.

The Enhancements: 0.15, Open Container, Child Passenger

Three facts about the same arrest can raise the offense level without any additional conduct by the driver.

A result of 0.15 or higher. The BAC elevation from 0.08 to 0.15 raises the offense one level (from Class B to Class A) and doubles the maximum fine. This elevation is triggered by the test result, not by any additional conduct. One detail is easy to miss: the statute keys to an alcohol concentration of 0.15 or greater at the time of testing, not at the time of driving. Testing happens well after the stop, and that gap is where retrograde extrapolation fights happen. See DWI 0.15 or Higher.

An open container in immediate possession. If it is shown at trial that the driver had an open container of alcohol in immediate possession, the offense stays a Class B misdemeanor but the minimum term of confinement rises from 72 hours to six days. The offense level and maximum fine do not move. The floor does, which is exactly the number that matters to someone asking whether a conviction means jail.

A passenger younger than 15. Any DWI in which a passenger under 15 years of age is present in the vehicle is elevated to a state jail felony under Texas Penal Code §49.045, regardless of BAC, prior history, or any other factor. That is a felony arising from a first offense with a clean record and a low result. One judicial escape hatch: a court may punish a state jail felony with Class A misdemeanor confinement instead, after weighing the gravity of the offense and the defendant’s history. See DWI With a Child Passenger.

Second, Third, and Felony Ranges

Second offense. One prior conviction for an intoxication offense makes the next DWI a Class A misdemeanor with a 30-day minimum term of confinement. A prior DWI conviction elevates a second offense to Class A and imposes a mandatory minimum period of confinement that cannot be suspended or waived. Note what counts as the prior: not only a prior DWI, but boating while intoxicated, flying while intoxicated, DWI with a child passenger, or intoxication assault. See Second and Third DWI.

Third offense. Two prior convictions make the third a third-degree felony, 2 to 10 years in TDCJ and a fine up to $10,000. A single prior conviction for intoxication manslaughter has the same effect on its own: the next DWI is a third-degree felony even if it is only the second offense.

There is no look-back period. A third DWI conviction is a felony regardless of how long ago the prior offenses occurred. Texas has no look-back window that limits when prior DWI convictions can be used for enhancement. A conviction from the 1990s counts the same as one from last year. This surprises more people than any other fact on this page, and it is covered in full on How Prior DWIs Count.

One procedural difference. For a second DWI, the prior is a punishment issue rather than an element, and it is not presented to the jury unless the defendant is convicted. For a felony DWI, the enhancement allegations are jurisdictional and must be proven at the guilt phase.

Cases involving injury or death. Intoxication assault is a third-degree felony requiring proof of serious bodily injury caused by intoxication. Intoxication manslaughter is a second-degree felony. In both, the State must prove not just intoxication but that the intoxication caused the injury or death, and causation is frequently where those cases are actually fought.

Is Jail Mandatory?

Yes at almost every tier, though not quite every one. A Class B first offense carries a floor of 72 hours that a judge cannot go below on a conviction. That floor rises to six days where an open container was involved and to 30 days on a second offense. The exception is the 0.15 Class A, which raises the ceiling to a year but carries no stated minimum of its own. So the real question is not whether jail is technically possible. It is what the floor is at your tier, whether supervision is available to you, and what it takes to avoid a conviction at all.

Here is the part that trips people up. Getting probation does not automatically mean getting no jail. When a judge grants community supervision on a case carrying priors, Texas law requires a period of confinement as a condition of that supervision:

• Not less than 72 hours of continuous confinement if the offense is enhanced by one prior offense.
• Not less than five days if enhanced by a prior offense and the later offense was committed within five years of the most recent preceding offense.
• Not less than 10 days if enhanced by two prior DWI, FWI, or BWI offenses, or by one prior intoxication manslaughter.
• Not less than 30 days if the offense is intoxication assault.
• Not less than 120 days if the offense is intoxication manslaughter.

And one consequence almost nobody is told: if community supervision is later revoked and the defendant is sentenced to confinement, time already served as a condition of supervision does not get credited toward that sentence. The days are served twice.

None of this describes a first offense with no priors, where supervision is typically granted. It describes what changes the moment a prior exists. What the court can impose is covered on Probation, and the ways a case can end without a conviction at all are on Every Way a Texas DWI Case Can End.

Getting Out From Under the Minimum

Every number above assumes a conviction. Three routes lead somewhere else, and which of them are open to you is fixed by your tier and your record before any negotiation starts.

Community supervision. For most first-offense cases, including a Class B, a Class A at 0.15 or higher, and even a DWI with a child passenger, the judge keeps discretion to grant supervision. Whether it is the right resolution turns on the strength of the evidence, your history, and the court you are in. The mandatory confinement conditions listed above attach only once a prior exists.

Deferred adjudication. Here the judge defers the finding of guilt, and completing the term ends the case in a dismissal. Texas reopened this for DWI under House Bill 3582, for offenses committed on or after September 1, 2019, the first time it had been available since 1983. It is narrow. You are excluded if you held a commercial driver’s license or commercial learner’s permit at the time of the offense, if your alcohol concentration was 0.15 or higher, or if you have a prior DWI-related conviction. It never reaches felony DWI, intoxication assault, intoxication manslaughter, or DWI with a child passenger. And it is deferred in name only in one respect: a completed deferred DWI still counts as a prior when the next case is enhanced. Eligibility and how it works in practice are on Deferred Adjudication.

One statutory wrinkle is worth knowing, because it can decide eligibility. The deferred statute measures the 0.15 at the time of the offense. The punishment enhancement in Penal Code 49.04(d) measures it at the time of analysis. The two do not line up, and which controls is unsettled.

Commercial drivers have no deferred option at all. A CDL or CLP holder is disqualified from DWI deferred adjudication by statute, so the trade a commercial driver is often told to weigh does not exist. For a CDL holder the only outcomes that protect the license are a dismissal or an acquittal.

Intoxication manslaughter is the hard stop. Under Article 42A.054, a judge cannot grant community supervision to a defendant convicted of intoxication manslaughter. A jury can, and its recommendation binds the judge. That single distinction is why intoxication manslaughter cases that do not resolve in negotiation so often go to trial. After a conviction, the jury is the only path to a supervised sentence.

The License Runs on a Separate Track

Nothing in the table above is a license suspension. The penalties on this page are what a criminal court can impose after a conviction. The license case is a civil proceeding brought by DPS that starts the night of the arrest, runs on its own deadline, and reaches its own decision regardless of what the criminal court does.

So the two can diverge. A license can be suspended while the criminal case is still pending, and an administrative suspension is not undone automatically by a later dismissal. How long a suspension runs is on How Long Your License Is Suspended, the split itself is on Two Cases, Not One, and the deadline that protects the license is on The 15-Day Rule.

What a Conviction Costs Beyond the Fine

The fine in the table is not the bill. A final DWI conviction triggers a separate Transportation Code fine on top of the criminal fine: $3,000 for a first conviction, $4,500 for a second within a 36-month period, and $6,000 when the alcohol concentration was 0.15 or greater at the time of analysis. A judge may waive it on a finding of indigence.

That fine replaced something else, and the difference matters because the old version is still all over the internet. The Driver Responsibility Program, with its annual DPS surcharges, was repealed effective September 1, 2019. If you are reading about annual DPS surcharges on a DWI, you are reading about a program that no longer exists.

Beyond fines, a conviction reaches insurance, employment, and professional licensing, collected on What a DWI Does to Your Life. The full arithmetic is on The Total Cost of a Texas DWI.

Every Page in This Section

A small section with two halves. The statutory exposure is what the Penal Code authorizes. The real cost is what a DWI takes out of your life whatever the sentence turns out to be, and it is usually the larger number.

The Statutory Exposure

The Real Cost

Monitoring is experienced as a condition of how the case ended rather than as a penalty in itself, so the full treatment sits with the outcome that produces it: Court-Ordered Alcohol Monitoring.

On Either Side of the Sentence