Texas DWI Defense Lawyer

Texas DWI Penalties

Texas Penal Code §49.04 defines DWI as operating a motor vehicle in a public place while intoxicated. Intoxication means either a BAC of 0.08% or higher, or not having the normal use of mental or physical faculties by reason of the introduction of alcohol or any other substance into the body. The second definition means a driver can be convicted of DWI at any BAC level if the prosecution proves impairment of normal faculties. 

Deferred adjudication for first-offense DWI — HB 3582. Effective 2023, Texas law allows deferred adjudication community supervision for a first-offense DWI where the recorded BAC was below 0.15% and the defendant has no prior DWI convictions. An ignition interlock device is required as a condition of the deferred supervision. If the defendant successfully completes the supervision period, the case is dismissed and the defendant may seek non-disclosure of the record making this the one path to a sealable DWI record for eligible first-time offenders. 

Deferred adjudication is not available for: second or subsequent DWI offenses; first-offense DWI with a recorded BAC of 0.15% or higher; DWI with child passenger; intoxication assault; intoxication manslaughter; or any other DWI offense elevated to a felony. For those offenses, a conviction results in a permanent, non-sealable record. 

First DWI Offense — Class B Misdemeanor

• Confinement: 72 hours to 180 days in county jail. Mandatory minimum is 72 hours. If an open container of alcohol was in the passenger area at the time of arrest, the mandatory minimum increases to 6 days. 
• Fine: Up to $2,000. 
• License suspension: 90 days to 1 year. 

Second DWI Offense — Class A Misdemeanor

• Confinement: 30 days to 1 year in county jail. Mandatory minimum is 30 days. 
• Fine: Up to $4,000. 
• License suspension: 180 days to 2 years. 

Third DWI Offense — Third-Degree Felony

• Confinement: 2 to 10 years in TDCJ. Mandatory minimum of 2 years. 
• Fine: Up to $10,000. 
• License suspension: 180 days to 2 years. 

DWI with Child Passenger — State Jail Felony

• Confinement: 180 days to 2 years in a state jail facility. 
• Fine: Up to $10,000. 
• Applies when a child under 15 years of age is a passenger in the vehicle. Applies even to a first DWI offense.

Intoxication Assault — Third-Degree Felony

• Confinement: 2 to 10 years in TDCJ. 
• Fine: Up to $10,000. Up to 600 hours community service. 
• Charged when intoxication causes serious bodily injury to another person. Elevated to second-degree felony if victim is a peace officer, firefighter, or EMS personnel.

Intoxication Manslaughter — Second-Degree Felony

• Confinement: 2 to 20 years in TDCJ. 
• Fine: Up to $10,000. Up to 800 hours community service. 
• Charged when intoxication causes the death of another person. Elevated to first-degree felony if victim is a peace officer, firefighter, or EMS personnel.Bentley’s Law requires monthly support payments to the deceased victim’s minor children until age 18. 

The Science of DWI Defense

Breath Testing

The Intoxilyzer 9000 is the breath testing instrument used in Texas. It measures alcohol in deep lung air and converts that measurement to an estimated blood alcohol concentration using a fixed partition ratio of 2100:1. The actual partition ratio varies across the population from approximately 1100:1 to 3400:1. A driver with a partition ratio higher than assumed will have a lower actual BAC than the instrument reports. The instrument’s calibration records, the 15-minute observation period compliance, and the presence of any interfering substances are all subject to independent examination. 

Blood Testing

A blood draw provides a direct measurement but is only as reliable as the collection, storage, and analysis procedures that produced it. In vitro fermentation (the conversion of residual blood sugars to alcohol by bacteria after collection) can occur when specimens are improperly stored or when the sodium fluoride preservative is inadequate. GC-FID is the standard analytical methodology for blood alcohol. The raw laboratory data (the chromatogram, calibration curve, internal standard performance, and quality control records) is what the defense reviews, not just the final reported number. 

Field Sobriety Tests

The three standardized field sobriety tests (HGN, Walk and Turn, and One Leg Stand) were validated by NHTSA under controlled conditions with trained officers. Their accuracy claims apply only when the tests are administered exactly as specified in the NHTSA manual, in comparable conditions, to subjects from the studied population. HGN has more than 47 documented causes other than alcohol. Physical conditions, age, weight, inner ear disorders, neurological conditions, medications, environmental factors, and protocol deviations all affect reliability. Deandra Grant is a certified SFST instructor who administers and grades these tests professionally. 

Retrograde Extrapolation

When a blood or breath test is administered some time after the traffic stop, the prosecution may use retrograde extrapolation to project the BAC backward to the time of driving. This requires assumptions about absorption rate, elimination rate, and whether the driver was in the absorption or elimination phase at the time of the stop. Those assumptions are variable across individuals and are subject to challenge at the pharmacokinetic level. 

The ALR Deadline: 15 Days

When a Texas driver is arrested for DWI and fails or refuses a breath or blood test, DPS initiates an Administrative License Revocation. The driver receives a notice of suspension and has 15 days from the date of receiving that notice to request an ALR hearing. Missing this deadline means the suspension takes effect automatically with no opportunity to contest it. 

Requesting the ALR hearing delays the suspension. The arresting officer must appear and testify under oath. This provides the defense an early opportunity for sworn cross-examination and fact development before the criminal case is resolved. Every DWI defendant who received a notice of suspension should request the ALR hearing without exception. 

Contact Our DWI Defense Lawyers

If you or someone you know has been arrested for DWI in Texas, call (214) 225-7117 for a free, confidential consultation. If you received a notice of suspension, the 15-day ALR deadline is already running. Or schedule online at texasdwisite.com/schedule-consultation.