This page was written, edited, reviewed & approved by Brian LaVine following our comprehensive editorial guidelines. Brian LaVine the Founding Partner, 10+ years of legal experience as criminal defense attorney.
A first DWI arrest in Austin is a Class B misdemeanor under Texas law, and it opens two separate cases at once: one in a Travis County criminal court and one against your driver's license. Most people never learn that the license case carries a 15-day deadline until it has already passed.
If you have been arrested for driving while intoxicated for the first time, an Austin first time DWI lawyer at LaVine Law Firm can take on both cases from the day you call. Our team defends first-offense DWI charges across Austin and Travis County, and we examine every part of the stop, the testing, and the arrest for the problems the State would rather stay buried.
Call 713-965-7305 to talk through what you are facing.
Texas Penal Code § 49.04 makes it an offense to be intoxicated while operating a motor vehicle in a public place. A first offense without aggravating facts is a Class B misdemeanor with a minimum term of confinement of 72 hours.
That minimum sits inside the statute itself, which is unusual. Most Texas offenses set only a ceiling and leave the floor to the judge.
Section 49.01 gives prosecutors two separate routes to the same charge. A person is intoxicated if they do not have the normal use of their mental or physical faculties because of alcohol, a controlled substance, a drug, or a combination of substances, or if they have an alcohol concentration of 0.08 or more.
The first route matters more than most people expect. The State can pursue a DWI on an officer's observations alone, with no test result behind it.
That cuts both ways. When the case rests on what one officer believed at the roadside, the officer's judgment becomes evidence, and evidence can be challenged.
The two terms are not interchangeable here, though they are used that way in many other states. DWI is the adult offense under the Penal Code and applies at any age.
DUI is a separate matter reserved for drivers under 21, who face consequences under Texas zero-tolerance rules for any detectable amount of alcohol. If you are 21 or older and were arrested in Austin, you are facing a DWI.
What a first offense actually costs depends on a handful of facts: your alcohol concentration, whether an open container was within reach, and whether anyone was hurt. The gap between the low end and the high end is wide enough to be worth fighting over.
A standard first DWI exposes you to the following:
Section 49.04(d) raises a first offense to a Class A misdemeanor when an analysis of a blood, breath, or urine specimen shows an alcohol concentration of 0.15 or more at the time the analysis was performed. That moves the ceiling to one year in jail and a fine of up to $4,000.
An open container of alcohol in your immediate possession works differently. Under Section 49.04(c) the charge stays a Class B misdemeanor, but the minimum term of confinement rises from 72 hours to six days.
Texas Transportation Code § 709.001 adds a state traffic fine on final conviction, separate from anything the court assesses. It runs $3,000 for a first conviction within a 36-month period, $4,500 for a second, and $6,000 when the alcohol concentration was 0.15 or more.
This fine surprises people months after their case ends. It is worth knowing that the statute also directs the court to waive all fines and costs imposed under that section if it finds the person indigent.
The criminal charge and the license suspension move on different tracks, before different decision-makers, under different burdens of proof. Winning one does not resolve the other.
Under Transportation Code § 524.031, you have 15 days from receiving notice of suspension to request an administrative license revocation hearing.
Let that window close and the suspension takes effect automatically on the 40th day after notice, with no hearing and nothing left to contest. This is the single most common way a first-time DWI client loses ground before ever seeing a courtroom.
Requesting the hearing keeps your license valid until an administrative law judge rules. It also gives us an early, sworn look at the arresting officer's account of the stop.
The suspension length turns on what happened at the roadside:
Refusing costs you twice as long administratively. It also leaves the State without a number to put in front of a jury.
A first DWI charged as a misdemeanor is handled by the Travis County criminal county courts at law, the same courts our Austin criminal defense attorney team appears in on other misdemeanor matters. The sequence is usually predictable:
First offenses have doors open to them that repeat cases do not. Whether any of these fit depends entirely on the facts.
Deferred adjudication lets a judge withhold a finding of guilt while you complete a supervision period. Complete it and the case is dismissed without a conviction.
Article 42A.102 of the Code of Criminal Procedure closes this option in several situations, including where the alcohol concentration was 0.15 or more, where the driver held a commercial driver's license, and where the punishment could be enhanced because of a prior intoxication offense.
Deferred adjudication is not the same as an expunction. The arrest can still surface on a background check unless the record is sealed.
Texas Government Code § 411.0731 may allow an eligible person convicted of a first DWI to petition for nondisclosure. The waiting period is generally three years after completion of the sentence when the person successfully complied with a qualifying ignition interlock condition for at least six months, and five years otherwise.
Travis County operates a pretrial diversion program and a DWI Court program, both with their own eligibility screening. Higher-risk cases are excluded, and admission is decided case by case rather than by right.
We assess early whether a client is a realistic candidate, because these applications move on their own timelines and a missed screening window can foreclose the option entirely. Where diversion is not available, the same underlying facts often still support a negotiated result on the criminal side.
Our approach on a first offense is to press on every point where the State has to prove something. As part of our DWI defense practice, we look hard at three areas.
An officer needs a lawful reason to pull you over before anything that follows can be used. We compare the stated reason with the video, the timing, and the dispatch record.
If the stop fails, the testing and the arrest that came after it can fall with it.
Roadside tests are administered under conditions no laboratory would accept: roadside gravel, passing traffic, headlights, nerves, and an officer who has already formed an opinion.
A number on a report is not automatically reliable evidence. We look at the instrument's maintenance history, whether the observation period was honored, how a blood specimen was drawn, stored, and transported, and whether the chain of custody holds up.
A first DWI does not have to define the years that follow it, but the decisions that shape the outcome get made early, and the 15-day license deadline is already running. Our Austin first time DWI lawyers at LaVine Law Firm defend first-offense charges throughout Austin and Travis County, and founding partner Brian LaVine has spent more than a decade in Texas criminal courts.
Call 713-965-7305 or contact our team to get started.
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