Most DWI Charges in Texas Are Misdemeanors: Here’s the Breakdown
A standard first-offense DWI in Texas is a Class B misdemeanor under Texas Penal Code § 49.04. That means 72 hours up to 180 days in county jail, a fine of up to $2,000, and a potential driver’s license suspension. A second DWI is a Class A misdemeanor: 30 days up to one year in jail and up to a $4,000 fine. These are serious charges, but they are not felonies.
There is one exception at the misdemeanor level worth knowing: if your blood or breath alcohol concentration (BAC) was >= 0.15 on a first offense, the charge will be elevated to a Class A misdemeanor under § 49.04(d), even though it’s still your first arrest. It carries a punishment range of up to one year in the county jail and up to a $4,000 fine.
With all misdemeanor DWIs, Texas law incentivizes probation by waiving an additional statutory fine and a post-conviction driver’s license suspension when a defendant successfully completes probation. Misdemeanor DWI probation can last up to two years and may be extended by an additional year if the defendant fails to satisfy all terms and conditions of probation during the original sentence.
Here’s a quick breakdown of where Texas DWI charges stand before we get to felony territory:
| Offense | Classification | Max Jail | Max Fine |
|---|---|---|---|
| 1st DWI (BAC < 0.15) | Class B Misdemeanor | 180 days | $2,000 |
| 1st DWI (BAC >= 0.15) | Class A Misdemeanor | 1 year | $4,000 |
| 2nd DWI | Class A Misdemeanor | 1 year | $4,000 |
The key word in all of these is “misdemeanor.” Probation or county jail, not prison. That distinction matters enormously for your future.
When Does a DWI Become a Felony in Texas?
A DWI becomes a felony in Texas under four circumstances, each defined by its own statute. These are not gray areas. They are bright-line rules that determine whether your case stays in county court or moves to district court, where felony charges are prosecuted.
Third DWI or More (3rd Degree Felony – § 49.09(b))
If you have two prior DWI convictions and you are arrested for DWI again, your third offense is a 3rd Degree Felony. It doesn’t matter how long ago your prior convictions occurred. Texas has no look-back period for DWI enhancements. A conviction from 20 years ago counts the same as one from last year.
Two things that surprise a lot of people: a deferred adjudication for a misdemeanor DWI counts the same as a conviction for purposes of elevating a new arrest to felony status. If you took deferred adjudication on a prior DWI in another county or state, that prior can still be used against you. Do not assume that because you “didn’t get convicted” in the traditional sense that it won’t count. Additionally, it is possible to have two convictions for DWI 1st. The next DWI is still a felony. You don’t have to have a DWI 2nd conviction before you can be charged with a DWI 3rd.
A 3rd Degree Felony carries 2 to 10 years in prison and a fine of up to $10,000 or the possibility of 2 to 10 years of probation.
DWI with a Child Passenger Under 15 (State Jail Felony – § 49.045)
If you are arrested for DWI and there is a child under 15 years old in your vehicle, the charge is a State Jail Felony, regardless of whether it is your first offense. It doesn’t matter if the child is your own. The presence of a minor transforms what would otherwise be a misdemeanor into a felony on the spot.
A State Jail Felony carries 180 days to 2 years in state jail – a separate network of facilities from both county jails and prison. It is still a felony conviction with all the collateral consequences that come with it. Probation for a State Jail Felony ranges from 2 to 5 years, and the fine ranges up to $10,000.
Intoxication Assault (3rd Degree Felony – § 49.07)
If you are intoxicated while operating a motor vehicle and you cause serious bodily injury to another person, you can be charged with Intoxication Assault: a 3rd Degree Felony. “Serious bodily injury” is defined as injury that creates a substantial risk of death, causes permanent disfigurement, or results in the loss or impairment of a bodily member or organ.
A car crash where another driver or passenger is seriously hurt can elevate a DWI into Intoxication Assault even if the accident was not entirely your fault. The range of punishment is 2 to 10 years in prison and up to a $10,000 fine.
Intoxication Manslaughter (2nd Degree Felony – § 49.08)
Intoxication Manslaughter is the most serious DWI-related offense in Texas. If someone dies as a result of an accident caused by your intoxicated driving, you face a 2nd Degree Felony with 2 to 20 years in prison and a fine of up to $10,000. Prosecutors pursue these cases aggressively, and the cases generate significant media attention in the Dallas area.
What Are the Penalties for Felony DWI in Texas?
Understanding the difference between felony classifications matters because the punishment ranges are substantially different:
| Offense | Classification | Confinement Range | Max Fine | Potential License Suspension |
|---|---|---|---|---|
| DWI – 3rd Offense | 3rd Degree Felony | 2-10 years (prison) | $10,000 | 180 days-2 years |
| DWI with Child Passenger | State Jail Felony | 180 days-2 years (state jail) | $10,000 | 180 days-2 years |
| Intoxication Assault | 3rd Degree Felony | 2-10 years (prison) | $10,000 | 180 days-2 years |
| Intoxication Manslaughter | 2nd Degree Felony | 2-20 years (prison) | $10,000 | 180 days-2 years |
Beyond the sentence and fines, a felony DWI conviction in Texas carries consequences that follow you long after you’ve served your time: loss of the right to vote while incarcerated, loss of the right to possess a firearm, impact on professional licenses, and a permanent felony record that appears on every background check.
Is Jail Time Mandatory for a First DWI in Texas?
The answer depends on how your case is resolved, and the details matter.
If your DWI is resolved as a Class B misdemeanor, the mandatory minimum sentence is 72 hours of jail time. And when I say 72 hours, I mean 72 true hours – not 3 calendar days. In practice, if you are placed on probation for a first DWI, you will not have to serve any additional jail time as long as you comply with the terms of your probation.
What About Deferred Adjudication for DWI?
Texas does allow deferred adjudication for DWI but with one important condition. To be eligible, the case must be pled as a Class B misdemeanor DWI first offense. You cannot receive deferred adjudication on a Class A DWI. This matters enormously for people charged with a first DWI at the enhanced level because of a BAC >= 0.15 since that charge comes in as a Class A. In some cases, we are able to negotiate a Class A DWI down to a Class B, which opens the door to deferred adjudication. Whether that negotiation is possible depends on the facts of the case, the prosecutor’s office, and the county, but it is a real option worth pursuing, and one of the reasons early, aggressive representation pays off.
Under deferred adjudication, you complete a period of community supervision, and if you successfully finish it, the charge is dismissed. Unlike a straight probation conviction, a deferred adjudication on a DWI does not result in a final conviction although it does remain on your record and, as discussed above, can still be used as a prior offense if you are ever arrested for DWI again. A nondisclosure can hide a DWI resolved with a deferred adjudication from public view, but law enforcement can still see the nondisclosed DWI for enhancement purposes.
What About a Second DWI?
A second DWI carries a mandatory minimum of 30 days in county jail, but the way that plays out in a probation scenario is more nuanced. If you are placed on probation for a DWI second offense, Texas law requires either 3 days or 5 days of county jail time as a term and condition of that probation – the length depends on how recently the first DWI occurred. That jail time is separate from the conviction minimum and must be served as a condition of your community supervision.
One option we frequently pursue in DWI second cases is negotiating the charge down to a second DWI first offense. If successful, that removes the mandatory jail time as a probation condition entirely and significantly changes the posture of the case. It is not always possible, but it is always worth exploring.
What About Felony DWI Probation?
If you are placed on probation for a 3rd Degree or 2nd Degree Felony DWI – a third offense, Intoxication Assault, or Intoxication Manslaughter – Texas law requires a minimum of 10 days in the county jail as a term and condition of that probation. This is in addition to whatever other conditions the court imposes. Felony probation for DWI carries significantly more requirements than misdemeanor probation, and the consequences of a violation are severe.
Does a Felony DWI Ever Go Away in Texas?
This is one of the hardest questions I get asked, and the honest answer requires a clear distinction between misdemeanor and felony DWI.
For a misdemeanor DWI conviction, Texas law does allow for a limited form of record sealing called an Order of Nondisclosure under Tex. Gov’t Code § 411.0731 – but only for first-offense DWIs with no accident and a BAC under 0.15, after successfully completing probation and waiting either 2 or 5 years depending on whether an ignition interlock device was required. A nondisclosure seals the record from public view but does not erase it. Law enforcement and certain licensing agencies can still see it. You can read more about your options in our detailed guide on DWI expungement in Texas.
For a felony DWI conviction, nondisclosure is not available. The only way a felony DWI comes off your record is if the case is dismissed or you are acquitted, in which case an expunction becomes possible. That’s why fighting the charge aggressively from the beginning is so critical when felony-level offenses are involved. A conviction at that level is permanent.
What Should You Do If You’re Facing a Felony DWI Charge?
Felony DWI cases demand a different level of preparation than misdemeanor cases, and the defense approach we take changes significantly based on the specific charge.
In cases involving a third or subsequent DWI, one of the first things we examine is whether the prior convictions can be proven. If a prior DWI conviction cannot be proven by a valid judgment and sentence or pen pack, then prosecutors may not be able to go forward with a felony DWI 3rd. I’ve seen cases where a defective prior judgment made the difference between a felony and a misdemeanor.
In Intoxication Assault and Intoxication Manslaughter cases, the defense often centers on causation. Prosecutors must prove not just that you were intoxicated, but that your intoxication caused the accident. Accidents happen for many reasons: road conditions, mechanical failures, the actions of other drivers. We work with accident reconstruction experts and scrutinize every piece of evidence to challenge the causation element.
In DWI with Child Passenger cases, the facts surrounding the arrest still matter. Was the traffic stop lawful? Was the investigation conducted properly? Were field sobriety tests administered correctly? The presence of a child elevates the charge, but it doesn’t eliminate your right to challenge how the evidence was gathered.
Having previously taught DWI investigation to new officers at the Collin County police academy, I know exactly what law enforcement is trained to do, and where they commonly fall short. That background informs how we approach every case we handle, whether it’s a first-offense misdemeanor or a felony Intoxication Assault at the Collin, Denton, and Dallas County courthouses.
The most important step you can take right now is getting an attorney involved before you make any decisions about your case.
Frequently Asked Questions
Is a First DWI a Felony in Texas?
No. A first-offense DWI in Texas is a Class B misdemeanor under Texas Penal Code § 49.04, carrying up to 180 days in county jail and a $2,000 fine. The only exception is a first offense with a BAC >= 0.15, which is elevated to a Class A misdemeanor, but still not a felony. A first DWI becomes a felony only if there is a child under 15 in the vehicle, or if someone is seriously injured or killed as a result of the incident.
Is a Second DWI a Felony in Texas?
No. A second DWI in Texas is a Class A misdemeanor, carrying up to one year in county jail and a $4,000 fine, with a mandatory minimum of 30 days. It is not a felony. A third DWI is where felony charges begin: specifically, a 3rd Degree Felony under § 49.09(b), which carries 2 to 10 years in prison.
How Many DWIs Does It Take to Get a Felony in Texas?
Three. A third DWI in Texas is a 3rd Degree Felony. Texas has no look-back period, meaning prior DWI convictions from any point in your past can be used to enhance a new charge to felony status. Prior convictions from other states can also count if they would have been DWI offenses under Texas law. And importantly, a deferred adjudication on a prior DWI counts the same as a conviction for enhancement purposes.
Can You Get Probation for a Felony DWI in Texas?
It depends on the specific charge and your criminal history. For a third-offense DWI, probation may be available, but it is not guaranteed, and judges have wide discretion. For Intoxication Assault and Intoxication Manslaughter, probation is possible but prosecutors typically push hard for prison time. In all felony DWI cases, having an experienced defense attorney negotiate on your behalf can make a significant difference in whether probation is an option.
What Is the Difference Between a DWI Misdemeanor and Felony in Texas?
The primary differences are the court, the punishment range, and the long-term consequences. Misdemeanor DWI cases are heard in county courts and carry county jail time, with fines up to $4,000. Felony DWI cases are heard in district courts, carry prison time, higher fines, and a permanent felony record that cannot be sealed or expunged after a conviction. The collateral consequences – loss of firearm rights, employment barriers, and professional license impacts – are also substantially more severe for felony convictions.
Facing a DWI Charge in the Frisco Area? Let’s Talk.
Whether you’re dealing with a first offense or something more serious, the time to get a defense attorney involved is now, not after you’ve talked to the prosecutor or made decisions about your case on your own.
At My Dallas Criminal Lawyer, we’ve handled thousands of DWI cases across Collin, Dallas, Denton, and Rockwall Counties, and we were recognized by the Dallas Morning News in 2025 as DFW’s top DWI firm. We offer free consultations, and we’ll give you an honest assessment of where your case stands and what your options are.
Call us or visit My Dallas Criminal Lawyer to get started.
