DWI 3rd or More in Texas

Texas Penal Code 49.09(b) states that, “an offense under Section 49.04 (DWI)…is a felony of the third degree if it is shown on the trial of the offense that the person has been previously been convicted:

  • one time of an offense under Section 49.08 [Intoxication Manslaughter] or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
  • two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.

A felony of the third degree is punishable from 2-10 years in prison. However, if a deadly weapon is not alleged, you can still get probation from a Judge and also from a jury (assuming no prior felony convictions).

As the statute lays out, while the case will normally be indicted as a “DWI 3rd or More,” there is the one special circumstance where if you were ever convicted once before of Intoxication Manslaughter, your next DWI would be enhanced to a third degree felony even if it is only your second time driving while intoxicated.

Depending upon the jurisdiction and some substantial treatment programs entered into by individuals, there are times when these may be pled down to a misdemeanor. This of course all depends upon the individual and the facts of the case.

The State still needs to prove your guilt beyond a reasonable doubt and must prove that you were convicted twice before of these intoxication offenses or that you received Deferred Adjudication before (while Deferred Adjudication if successfully completed normally does not result in a conviction, under this statute and the Assault Family Violence statute, the Deferred Adjudication plea can still be used to enhance the crime to the third degree felony level).

We are here to analyze the case in detail just as we would any DWI, but also to analyze the alleged prior offenses and provide as many options to you as possible in terms of a plea or trial. Even if it’s your fourth, fifth or sixth DWI, depending on the circumstances, this does not automatically equal prison time. Different cases have different outcomes. For example, someone can have three convictions for DWI at age 21 and then get another at age 50. While it may be the person’s fourth DWI, the 29 year intervening period without a DWI can way significantly in evaluating the case. We welcome the opportunity to work with you to develop these options.

Call us at (512) 494-4070 or request a free consultation online now relating to this specific charge.