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.
Key Takeaways
Most Texas DWI charges are misdemeanors, but certain circumstances can result in a felony DWI or a separate felony intoxication charge. The difference is not a small one. A misdemeanor DWI means county jail exposure and a record that may qualify for sealing later, while a felony conviction means state jail or prison and consequences that last a lifetime.
The dividing line is written directly into the Texas Penal Code. It turns on prior convictions, test results, who was in the car, where you were driving, and whether anyone was hurt. At LaVine Law Firm, we defend drivers throughout Houston against both misdemeanor and felony DWI charges, and you can call our team to have the facts of your arrest reviewed.
Texas does not treat every DWI the same way. The grade of the offense is set by the circumstances surrounding the arrest, not by how serious the stop felt at the time. Two drivers arrested on the same night can face charges separated by years of potential confinement.
Texas law determines the offense grade, while prosecutors allege the facts and prior convictions they believe support that classification. Alleged prior convictions may appear as enhancement allegations, while circumstances such as a child passenger can support a separate felony intoxication charge.
Under Texas Penal Code Chapter 49, a person commits an offense by being intoxicated while operating a motor vehicle in a public place. Intoxication carries two definitions in the statute.
The first is losing the normal use of mental or physical faculties because of alcohol, a controlled substance, or a drug. The second is a blood alcohol concentration (BAC) of 0.08 or more.
That first definition surprises many drivers. A charge can follow even when a BAC reading falls below 0.08, because an officer's observations of speech, balance, and coordination can support the case without a test result.
A misdemeanor sentence is served in county jail. A felony sentence is served in a state jail facility or in a state prison unit, depending on the grade of the offense.
The label also outlives the sentence. A felony conviction reaches firearm rights, professional licensing, and job applications for decades after the case closes.
Most DWI arrests in Houston are filed as misdemeanors. Within that category, Texas law still recognizes several grades, and each one carries its own floor and ceiling.
A standard first offense is a Class B misdemeanor with a minimum term of confinement of 72 hours written into the statute itself. The ceiling comes from Chapter 12 of the Penal Code: Up to 180 days in county jail and a fine of up to $2,000, as reflected in the Texas Attorney General's offense classification chart.
Community supervision is available in many first offense cases. The conditions a judge imposes vary from court to court.
When the driver had an open container of alcohol in immediate possession, the offense remains a Class B misdemeanor, but the minimum term of confinement rises to six days. The grade does not change. The floor does.
A blood, breath, or urine analysis showing an alcohol concentration of 0.15 or more raises the offense to a Class A misdemeanor. That grade carries up to one year in county jail and a fine of up to $4,000.
The statute ties this enhancement to the concentration at the time the analysis was performed, not at the time of driving. When hours pass between a traffic stop and a blood draw, that distinction matters, and we examine the timeline closely in every case where the result sits near the line.
One prior conviction for an intoxication offense makes a new DWI a Class A misdemeanor with a minimum term of confinement of 30 days. Convictions from other states can count toward that enhancement. Older cases can count as well.
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Texas law recognizes several situations in which an intoxicated-driving case can result in felony charges:
Each of these paths carries its own grade and its own sentencing range.
Two prior convictions for intoxication offenses make a new DWI a third-degree felony. That grade carries two to ten years in prison and a fine of up to $10,000. A single prior conviction for intoxication manslaughter produces the same result.
Driving while intoxicated with a passenger younger than 15 is a state jail felony. The range runs from 180 days to two years in a state jail facility, plus a fine of up to $10,000. No prior convictions are required, so this charge can land on a driver with a clean history.
Senate Bill 826 added a new subsection to the DWI statute that applies to offenses committed on or after September 1, 2025. A DWI is now a state jail felony when the driver was operating in a school crossing zone during the hours the reduced speed limit applied to that zone.
This provision reaches first-time drivers. Two facts control it: whether the location qualified as a school crossing zone and whether the reduced speed limit was in force at that time. Both are worth investigating, because zone hours and markings are frequently misunderstood at the roadside.
Causing serious bodily injury to another person by reason of intoxication while operating a vehicle is intoxication assault, a third-degree felony carrying two to ten years in prison. Serious bodily injury is a defined term under Texas law, and whether a particular injury meets that definition is often contested.
The State must also connect the intoxication to the injury, not simply place an intoxicated driver at the scene. Crashes with several contributing causes give that link real weight to carry.
When a death results, the charge is intoxication manslaughter, a second-degree felony carrying two to twenty years in prison and a fine of up to $10,000. These cases move quickly, with accident reconstruction and blood evidence often assembled before an arrest is even made.
If you are unsure which category your charge falls into, the charging document and the offense report will answer the question. Call LaVine Law Firm at 713-965-7305 and we will review both documents with you.
The criminal case is only half of what follows a DWI arrest. Administrative License Revocation (ALR) is a civil process handled by the Texas Department of Public Safety, and the State Office of Administrative Hearings guide confirms that it is handled separately from the criminal court case.
You have 15 days from the date the notice is served to request an ALR hearing, according to the Texas Department of Public Safety. When no request is made, the suspension takes effect on the 40th day after notice.
Refusing a breath or blood specimen triggers a separate suspension. Under Chapter 724 of the Texas Transportation Code, a refusal carries a 180-day suspension, which rises to two years when the driving record shows an alcohol-related or drug-related enforcement contact in the preceding ten years.
A driver can prevail in the criminal case and still lose driving privileges by letting the 15-day window close. Picture someone who refuses a breath test, retains counsel three weeks later, and sees the criminal charge dismissed months after that. Without a timely hearing request, the suspension ran its full course while the criminal case was still pending.
LaVine Law Firm calendars that deadline the moment a client hires us.
The grade attached to your case decides what your record looks like years from now, long after any jail time or supervision ends.
Texas allows some first-time DWI cases to be sealed from public view through an order of nondisclosure once community supervision is complete. The nondisclosure petition rules set waiting periods that depend on whether an ignition interlock device was required as a condition of supervision.
Cases charged under the 0.15 subsection fall outside this relief. A collision involving another person can also defeat the petition, and felony DWI convictions do not qualify at all.
A felony record reaches parts of life that have nothing to do with driving:
A misdemeanor carries real weight as well, though it does not follow a person in the same way.
Yes. A first-time intoxication case can involve felony charges when there is a child passenger, a qualifying school crossing zone, serious bodily injury, or death. Serious-injury and death cases are prosecuted as intoxication assault or intoxication manslaughter.
A conviction remains on your criminal record unless a court grants an order of nondisclosure. Eligibility turns on the grade of the offense and the specific facts of the case.
It can be. Two prior convictions, a young passenger, or an active school crossing zone each raise the charge to a felony without any injury at all.
You have 15 days from the date the notice of suspension is served. That deadline applies statewide and does not change based on the county of arrest.
Sometimes. Much depends on the strength of the evidence and the validity of the prior convictions the State intends to use, and we evaluate both in every felony case.
Learning whether your charge is a misdemeanor or a felony should not require guesswork from a courthouse website at midnight. The grade on your charging document controls the sentencing range, the court your case lands in, and whether the record can ever be sealed.
LaVine Law Firm defends drivers against DWI charges at every grade, from a Class B misdemeanor first offense through intoxication manslaughter. We examine the traffic stop, the field sobriety testing, the specimen collection, and the prior convictions the State plans to use for enhancement. Where an enhancement rests on weak proof, we challenge it.
Call LaVine Law Firm at 713-965-7305 for a free case evaluation with a DWI defense attorney who can explain exactly where your charge falls under Texas law.
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