How Texas defines DWI
The "operating a motor vehicle" element is broader than driving. Texas appellate courts have found "operating" where a defendant was sitting in a parked car with the engine off but the keys in the ignition, and where a defendant had pulled to the side of the road with the car running. The State only needs to show the defendant exerted some control over the vehicle's machinery.
"Public place" under § 1.07(40) includes private parking lots open to the public, apartment complex parking, gas stations, and any place where the public has access — even by invitation. Private residential driveways are typically not "public places."
DWI offense levels under Ch. 49
Texas has nine distinct DWI offenses, each with its own elements and punishment range:
| Offense | Statute | Class | Jail / prison | Penal Code fine max |
|---|---|---|---|---|
| DWI 1st | § 49.04 | Class B misdemeanor | 72 hours – 180 days | $2,000 |
| DWI 1st with open container in vehicle | § 49.04(c) | Class B | 6 days minimum – 180 days | $2,000 |
| DWI 1st with BAC ≥ 0.15 | § 49.04(d) | Class A misdemeanor | up to 1 year | $4,000 |
| DWI 2nd | § 49.09(a) | Class A | 30 days minimum – 1 year | $4,000 |
| DWI 3rd or subsequent | § 49.09(b) | Third-degree felony | 2 – 10 years prison | $10,000 |
| DWI with child passenger (under 15) | § 49.045 | State jail felony | 180 days – 2 years SJF | $10,000 |
| Intoxication assault | § 49.07 | Third-degree felony | 2 – 10 years prison | $10,000 |
| Intoxication manslaughter | § 49.08 | Second-degree felony | 2 – 20 years prison | $10,000 |
| Intoxication manslaughter — emergency responder | § 49.08(b-1) | First-degree felony | 5 – 99 years or life | $10,000 |
Enhancements under § 49.09
Section 49.09 contains the enhancement structure that makes DWI more serious based on priors, BAC, and aggravating facts:
- § 49.09(a): DWI with one prior DWI = Class A misdemeanor with 30-day minimum jail.
- § 49.09(b)(1): DWI with one prior intox assault or intox manslaughter = 3rd-degree felony.
- § 49.09(b)(2): DWI with two or more prior DWIs = 3rd-degree felony (commonly called "felony DWI").
- § 49.09(d): DWI with BAC ≥ 0.15 = Class A misdemeanor (even on a first offense).
- § 49.09(g): Ignition interlock mandatory for any subsequent DWI.
- § 49.09(h): Intox assault / manslaughter with prior intox-offense conviction = sentence range increased one level.
The "prior offense" concept is more expansive than it looks. Under § 49.09(c), counted priors include not just Texas DWI but: any state's DWI/DUI; intoxication assault; intoxication manslaughter; boating-while-intoxicated; flying-while-intoxicated; assembling-or-operating-an-amusement-ride-while-intoxicated; and federal convictions for similar offenses. The State must allege the priors in the indictment to use them for enhancement.
The § 709 fine after HB 2048
For decades, Texas used the Driver Responsibility Program (DRP) to assess surcharges on DWI and other traffic offenses. The DRP was widely criticized for creating a poverty trap — defendants who could not pay surcharges lost their license, which prevented them from working to pay. In 2019, the Legislature passed HB 2048, repealing the DRP effective September 1, 2019.
HB 2048 replaced the surcharges with a single, statutory fine codified in Transp. Code § 709.001:
- $3,000 — DWI 1st offense
- $4,500 — DWI 2nd or subsequent within 36 months
- $6,000 — DWI with BAC ≥ 0.15
These fines are in addition to the Penal Code § 49 fine, the court costs, any restitution, ignition-interlock costs, and treatment costs. They are assessed at conviction and collected by the court like any other fine.
License suspension: ALR vs criminal
Texas has two separate license suspension proceedings that arise from a DWI arrest, and they are independent of each other.
ALR — Administrative License Revocation
The Administrative License Revocation (ALR) program under Tex. Transp. Code Ch. 524 and Ch. 724 is a civil proceeding run by the Texas Department of Public Safety. It triggers when a driver either fails the breath/blood test (BAC ≥ 0.08) or refuses to take it. The suspension is automatic 40 days after the arrest UNLESS the driver requests an ALR hearing within 15 days.
- First failure (BAC ≥ 0.08): 90 days suspension
- First refusal: 180 days suspension
- Second or subsequent (with prior alcohol contact in last 10 years): 1 year for failure; 2 years for refusal
The ALR hearing is a separate proceeding before an administrative law judge, with different evidentiary rules and a different burden of proof (preponderance, not beyond a reasonable doubt). Defense lawyers use it as discovery — subpoenaing the officer, getting their cross-examination testimony locked in, identifying weaknesses for the criminal case.
Criminal suspension on conviction
If you are convicted of DWI, an additional suspension follows under Transp. Code § 521.341–.346:
- DWI 1st conviction: 90 days – 1 year
- DWI 2nd: 180 days – 2 years
- Felony DWI / intox assault / intox manslaughter: 180 days – 2 years
The criminal suspension and ALR suspension can run consecutively, though some courts allow concurrent running for first-offenders. An occupational license may be available during either suspension to allow limited driving for work, school, and essential needs.
Ignition interlock requirements
An ignition interlock device (IID) is a breathalyzer attached to the vehicle's ignition. The driver blows into it to start the car, and it requires periodic re-tests while driving. Any sample above the calibrated threshold (typically 0.025 BAC) prevents start or triggers a violation report.
IID is mandatory in the following Texas DWI scenarios:
- DWI 2nd or any subsequent DWI (§ 49.09(g))
- DWI with BAC ≥ 0.15 (Class A — court has discretion to require)
- DWI with a child passenger (§ 49.045)
- Intoxication assault (§ 49.07)
- Intoxication manslaughter (§ 49.08)
- Any case where the judge orders IID as a bond condition or probation term
Cost: $70–$100 per month, plus $100–$150 installation. Most providers offer monthly billing. Failure to maintain the IID is a probation violation and can also be charged as a separate offense under § 49.09(h).
Collateral consequences beyond the sentence
The criminal sentence is only part of what a DWI conviction does:
- Driver's license: reinstatement fee of $125; SR-22 insurance for 2 years
- Insurance: rates typically triple for 3-5 years after conviction
- Professional licenses: impact on teaching certificates (SBEC), nursing, healthcare, commercial drivers (immediate CDL disqualification for 1 year), pilots
- Background checks: DWI convictions show in employment and housing screens for at least 7 years; cannot be expunged
- Immigration: for non-citizens, multiple DWIs can be a deportable offense or a bar to naturalization
- Federal employment / security clearance: DWI is a routine disqualifying factor