Analysis of the Driving While Intoxicated Law in Texas

Texas Penal Code 49.04 – Driving While Intoxicated

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What is “Driving While Intoxicated?”

The offense of driving while intoxicated can be found in 49.04(a). Let’s take a quick look at the statute (in italics below):

“A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”

What does “intoxicated” mean?

Let’s look at the legal definition of “intoxicated” (shown in italics below):

“Intoxicated” means:

 (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

 (B) having an alcohol concentration of 0.08 or more.”

 49.01(2)(A)-(B) tells us that someone is intoxicated when their blood alcohol concentration is .08 or higher.

However, the statute tells us it can also mean that you simply do not have the normal use of your mental or physical faculties because of alcohol, an illegal drug, a legal drug, or a combination of those substances.

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What is a “public place?”

A public place under Texas law is any area members of the public can readily access. Examples include streets, highways, parking lots, apartment complexes, or as a passenger in a car.

The list is extensive and these are only a few examples.

What are the penalties for a first offense DWI in Texas?

49.04(b) tells us that a DWI first offense is a Class B misdemeanor. That means a fine up to $2,000, suspension of the person’s driver license for 90 days-1 year, and anywhere from 72 hours-180 days in jail.

However, 49.04(d) tells us that if the person convicted of a DWI had a blood alcohol concentration of .15 or more, the charge will automatically be a Class A misdemeanor.

That means, even for a first-time offense, a fine up to $4,000, 72 hours-1 year in jail, and a suspended license for 90 days to 1 year.

What are the penalties for a second or third DWI offense?

For a second offense, the crime is a Class A misdemeanor. This means a potential fine up to $4,000, a suspended or revoked license for 180 days to 1 year, and 30 days to a year in jail.

For a third offense or higher, the crime is a Third-Degree felony. That means a fine up to $10,000, 2-10 years in jail, and a driver’s license suspension for 180 days-2 years.