Ask Deandra – What is the Penalty for a 2nd DWI in Texas?

Hello, everyone. This is Deandra Grant, and this is the Ask Deandra video series, where I answer the most commonly searched questions on the internet about DWI in Texas. It corresponds to my Ask Deandra blog series that I publish on my website, and the link to the blog about the topic we’re going to cover today is down in the description. So if you want more information at the end, you can go to the blog, and it can give you a whole lot more detail.

The question today is: what are the penalties for a second DWI in Texas? That’s a good question. We have lots and lots of clients that are in that position.

A second offense DWI carries more significant penalties than the first one would have. For example, on a first offense DWI, when you’re placed on probation, assuming that you either were found guilty at trial and placed on probation, or you worked out some sort of plea agreement on your first DWI that ended up with a conviction, if you were placed on probation, there were things you had to do. You probably had to do some community service. You had to take a class we call DWI class, but it’s formally called the DWI education program or something. The victim impact panel put on by Mothers Against Drunk Driving. You had to pay a fine. But your license wasn’t suspended if you were placed on first offense DWI probation, and probably 99% of the time you would not have done any jail time.

Now let’s move forward to your second offense. Your second offense DWI is going to carry some more significant penalties. If you were placed on probation, you would still have to do community service. Instead of doing the DWI education program, you would step up to a class called the repeat offender program. You would still have to take the victim impact panel again, but there’s a repeat version of that.

Some of the trickier stuff is that your driver’s license is going to be suspended for a period of time. How long it gets suspended is really going to depend on how long ago your last DWI was. So there’s a range of how long that suspension could go.

If you are placed on probation for a second offense, either from a plea bargain or from losing at trial and being placed on probation, you also have to serve some days in jail as a condition of probation. We usually do three, but it could be a lot more than three. It just depends on the county and what is negotiated with the DA. So those are the two things that make a second DWI a lot more difficult than a first to resolve.

Now, is it possible that the state could reduce your second offense charge back down to a first? The answer to that question is yes. It’s going to depend on the facts and circumstances of your case. It’s going to depend on the particular county where you’re charged, and what their standard operating procedures are in that county, and what the rules are that the prosecutors live by, that come from their boss, on whether they can knock second offenses back down to a first offense and put you on probation.

But I caution you, because people fall into this trap sometimes. It can be very good to get your second offense reduced to a first in terms of not having to serve any jail as a condition of probation. However, you have to always keep in mind that even if they reduce it from a second to a first, you’re still going to have a driver’s license suspension. Texas DPS is going to suspend your license regardless of whether it’s pled out or convicted as a second or a first. Because you’ve had a prior, there is going to be a driver’s license suspension. You have to always remember that, and your attorney should be advising you of that.

The length of time of that suspension, like I mentioned earlier, is going to be a range. Depending on various circumstances, you’re obviously going to be asking, or your attorney’s going to be asking, for the lowest end of that range and not the highest. And I will caution you: if your attorney is not knowledgeable about this, if the judge does not suspend your license right then at that plea, even though you’re pleading to a first offense, DPS will turn around when they find out and get notice of this conviction, and they will suspend your license for the maximum. So on a knockdown, whenever you have a reduction from a second to a first, when the plea is being done, you want to ask the judge to suspend for the minimum term, so that when it gets to DPS, DPS honors that. If the judge takes no action, you will get the maximum suspension. It’s another reason it’s important to hire an attorney that actually handles DWIs regularly and knows what they’re doing and understands the driver’s license implications.

The jail is always the tricky part, so if we can get rid of that, then that’s a good thing.

The other thing to note about a second offense DWI is that deferred adjudication is not available. We talked in our previous video about the penalties and consequences of a first offense misdemeanor DWI, and for class B cases in certain circumstances, deferred adjudication, or non-conviction status, is available. Once you get to a second offense DWI, there’s no deferred adjudication.

Another thing that you may not know is that if you took deferred adjudication on your first DWI, and you did not have a conviction, and then three, four, five years down the road you get another DWI, the state can still use your deferred adjudication, even though it wasn’t a conviction, as an enhancement to get you up to a second. You might think, well, I wasn’t convicted. Yes, but when they passed the deferred adjudication statute in Texas, it specifically states that a deferred probation can be used for enhancement for DWI. It doesn’t make a lot of logical sense. It’s one of the reasons that we actually refer to DWI deferred as fake deferred, because in a true deferred adjudication, that deferred is not enhanceable. You can’t use it later in another case. But for DWI, you can. So you need to also understand that, because if you get arrested and you’re like, well, my last DWI was a deferred, so this will be a first offense DWI: no, it won’t be.

Hopefully this was helpful to you. If you have more questions or want to read about this further, like I said earlier, go to the blog that I’ve written about this, and it breaks it all down for you. I hope this was helpful, and we will see you guys next time.