When Does a DWI Become a Felony in Texas?

Hello everyone. This is Deandra Grant, and welcome to the Ask Deandra video series, where we answer the most commonly asked questions about DWIs in Texas. This video series corresponds with my Ask Deandra blog series, so if you scroll down to the description of this video, you will see the URL for our blog post on the same topic.

Today’s topic is: when does a DWI become a felony in Texas? There are several ways that can happen.

One of them is that you are driving with a child under 15 in your car and you get stopped and arrested for DWI. What would normally be a misdemeanor DWI becomes a state jail felony because of the child being in the car. So that’s one way.

Another way is that it is your third DWI charge in a lifetime. And I don’t think charge was really the best language for me to use. You have two or more prior convictions, in Texas or out of Texas, for DWI, and one of them can include a deferred adjudication. If you have questions about that, you can go listen to our DWI deferred adjudication video topic. What that means is, let’s say you got a DWI in 1999, and then you got another one in 2008, and then, fast forward to now, you get another one. That’s going to be a felony, because it’s going to be a third.

What people do find a little bit confusing is that in Texas, the felony DWI statute is called DWI third no matter how many you’ve had. If you’ve had nine, I mean, I had one client that had 11 DWI convictions, and it was still called DWI third. So we call it DWI third, but it just means you have more than two. That is a third-degree felony, depending on whether or not you’ve been to prison before.

And then you could be charged with intoxication assault or intoxication manslaughter, and those would also be felonies. That means that what would normally be a DWI, operating a motor vehicle while intoxicated, but in this particular situation there was an accident, and someone either suffered serious bodily injury or someone died in that accident. If they suffered serious bodily injury, then you’re charged with intoxication assault. If someone dies, then you can be charged with intoxication manslaughter.

You could actually be charged with both. I’ve had cases before where one person in the car passed away and another person in the car had serious bodily injury but did not pass away, and so the client was charged with both intoxication manslaughter and intoxication assault out of the same accident.

One thing about those offenses is there has to be causation between the intoxicated driving and the serious bodily injury or death. In other words, if you collide with a car because you ran a red light, and then you caused these injuries or death and you’re intoxicated, then your running of the red light would be proof of causation for that accident.

Now let’s reverse it. Let’s say that you’re going through the green light. Maybe you are intoxicated. Maybe you have a 0.13 blood alcohol concentration, for example. But you’re going through a green light, and the other person runs a red light, and y’all collide in the middle of the intersection. In that scenario, you should not be charged with intoxication manslaughter or intoxication assault if someone in the other car passes away or suffers that kind of serious bodily injury, because there was no causation. You didn’t do anything to cause that accident. The intoxication that can be attributed to you at the time you were driving through the green light didn’t cause the wreck.

And you’d be surprised how often what appears at first to be intoxication manslaughter or intoxication assault later turns into misdemeanor DWI because of that causation element. It plays a big role in those cases.

So those are basically the situations where you can be charged with a felony DWI in Texas. We do have blogs on each and every one of those crimes individually, so if you want to find out more information about those, and also watch the videos that accompany those blogs, you can do that.

Hopefully you found this useful. Check back with us later. We have videos rolling out all the time on these topics. Take care, and we’ll see you back next time.