Quick reference
Texas Penal Code § 49.04 governs Driving While Intoxicated in Texas. The statute can be read in full at Texas Statutes via Texas Legislature Online. Punishment ranges and defenses depend on the specific subsection and circumstances of each case. Below is L and L Law Group's plain-English summary plus the strategic considerations we use when defending DWI charges.
What Texas Penal Code § 49.04 says
Section 49.04 of the Texas Penal Code is the controlling Texas statute for DWI. The statute defines what conduct is criminalized, what mental state (mens rea) is required, and what penalties apply. The full statutory text is published at capitol.texas.gov and updated each odd-numbered legislative session.
Like every Texas criminal statute, § 49.04 must be read together with:
Texas punishment classifications
The punishment for an offense under § 49.04 depends on the specific subsection charged and any enhancement allegations in the indictment. Texas Penal Code Chapter 12 sets the punishment ranges:
| Classification | Range | Authority |
|---|
| Class C misdemeanor | Fine up to $500 (no jail) | § 12.23 |
| Class B misdemeanor | Up to 180 days county jail; up to $2,000 fine | § 12.22 |
| Class A misdemeanor | Up to 1 year county jail; up to $4,000 fine | § 12.21 |
| State jail felony | 180 days - 2 years state jail (no parole); up to $10,000 fine | § 12.35 |
| 3rd-degree felony | 2-10 years TDCJ; up to $10,000 fine | § 12.34 |
| 2nd-degree felony | 2-20 years TDCJ; up to $10,000 fine | § 12.33 |
| 1st-degree felony | 5-99 years or life TDCJ; up to $10,000 fine | § 12.32 |
| Capital felony | Life without parole or death penalty | § 12.31 |
Enhancements under § 12.42 (prior felony convictions) and § 12.43 (prior misdemeanor convictions) can move the punishment range upward. The State must plead enhancement paragraphs in the indictment to use them at sentencing.
How L and L Law Group defends DWI cases
Every § 49.04 prosecution requires the State to prove each element of the offense beyond a reasonable doubt. The defense lawyer's job is to identify where the State's proof falls short. Common defense approaches in DWI cases:
- Constitutional defenses: Fourth Amendment suppression of evidence obtained through illegal search and seizure; Fifth Amendment / Miranda suppression of statements; Sixth Amendment right to counsel issues.
- Factual defenses: Mistaken identity, alibi, lack of corroboration, body-cam or surveillance contradictions of officer testimony.
- Legal defenses: Self-defense (Penal Code Chapter 9), necessity (§ 9.22), duress (§ 8.05), mistake of fact (§ 8.02), insanity (§ 8.01).
- Procedural defenses: Statute of limitations (CCP Article 12.01), speedy trial (Sixth Amendment), prosecutorial misconduct.
- Sentencing-phase defenses: Mitigation, character witnesses, treatment enrollment, employment verification, family support.
The right defense depends on the specific facts, the specific evidence the State has gathered, and the specific subsection charged.
Frequently asked questions
Is § 49.04 a felony in Texas?
The classification depends on the specific subsection and any enhancements alleged. DWI charges can range from Class C misdemeanor to 1st-degree felony in some cases. The indictment or information will specify the alleged classification.
What is the statute of limitations for DWI?
Most felonies in Texas have a 3-year statute of limitations under Code of Criminal Procedure Article 12.01, though some have no limitations period at all (capital felonies, certain offenses against children). Most misdemeanors have a 2-year limitations period under Article 12.02.
Can I get probation for an offense under § 49.04?
Probation eligibility depends on whether the offense is on the Code of Criminal Procedure Article 42A.054(a) aggravated-offense list (formerly "3g offenses"). Most non-aggravated offenses are probation-eligible. For complete probation framework, see our punishment range page.
Can the charge be expunged later?
If the case ends in dismissal, acquittal, or no-bill, expunction under Code of Criminal Procedure Chapter 55 is available. If the case results in successful deferred adjudication, non-disclosure under Government Code § 411.0725 may apply (subject to exclusion list). See our expunction page.
Does this charge require sex offender registration?
Only offenses listed under Code of Criminal Procedure Article 62.001(5) require registration. Most non-sexual offenses do not. If you have been charged under § 49.04 and are uncertain, the indictment and statute will indicate whether registration attaches.
What if § 49.04 was amended recently?
Texas statutes are amended each odd-numbered year (regular session). For prosecutions, the law in effect at the time of the alleged offense controls. Recent amendments to Texas Penal Code can be tracked at capitol.texas.gov.
Can L and L Law Group help with my DWI case?
Yes. We handle DWI cases across Collin, Dallas, Denton, Tarrant, Rockwall, Kaufman, Ellis, and Hunt counties. Co-founding partners Reggie London (Texas Bar No. 24043514) and Njeri London (Texas Bar No. 24043266) take cases personally. Call (972) 370-5060 for a free, direct-to-attorney consultation.
Related resources at L and L Law Group
Elements of the Offense, Subsection by Subsection
Texas Penal Code § 49.04 defines DWI. Combined with the definitions in Penal Code § 49.01, the offense covers both the per se BAC theory and the impairment theory.
§ 49.04(a) — Basic DWI
A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
Plain English
The State must prove three elements: operation, intoxication (as defined in § 49.01(2)), and public place.
What the State must prove
- Operation of a motor vehicle
- Intoxication under § 49.01(2) (impairment theory or per se 0.08+ BAC)
- In a public place
Common defenses
- Lack of operation (defendant was not driving)
- No intoxication at time of driving (rising BAC, post-stop drinking)
- Not a public place
- Suppression of stop, arrest, or chemical test
§ 49.01(2) — Definition of intoxicated
'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.
Plain English
Two alternative theories of intoxication: 'normal use' impairment (no chemical test needed) and 'per se' 0.08+ BAC (chemical test required).
What the State must prove
- Under (A): loss of normal use of mental or physical faculties, caused by an intoxicant
- Under (B): BAC of 0.08 or more at the relevant time
Common defenses
- Field-sobriety test challenges (officer training, environmental factors)
- Mata v. State challenge to retrograde extrapolation
- Kelly/Daubert challenge to chemical-test reliability
- Non-intoxicant causes of impairment (fatigue, medical condition)
§ 49.04(b)-(c) — Classifications and enhancements
Except as provided by Subsections (c) and (d) and § 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours. If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
Plain English
First-offense DWI is a Class B misdemeanor with a 72-hour minimum. An open container increases the minimum to 6 days. § 49.04(d) — BAC of 0.15 or more — raises the offense to a Class A misdemeanor.
What the State must prove
- All elements of (a)
- For (c) open-container enhancement: open container in immediate possession during operation
- For (d) high-BAC enhancement: BAC of 0.15 or more at the time of testing
Common defenses
- Challenge to the open-container element (location, accessibility)
- Challenge to high-BAC reading reliability
- Calibration and admissibility issues
§ 49.09 — DWI enhancements for priors
An offense under § 49.04, § 49.05, § 49.06, or § 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated... An offense under § 49.04, § 49.045, § 49.05, § 49.06, or § 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted two times of any other offense relating to the operating of a motor vehicle while intoxicated...
Plain English
A second DWI is a Class A misdemeanor with a 30-day minimum. A third or subsequent DWI is a 3rd-degree felony. Prior convictions out of state or for related offenses count under § 49.09(c).
What the State must prove
- Prior conviction(s) for qualifying intoxication offenses
- Validity and finality of the priors
- Identity of the defendant as the same person convicted of the priors
Common defenses
- Challenge to validity of priors (uncounseled plea, etc.)
- Out-of-state priors that don't meet § 49.09(c) requirements
- Identity challenge — wrong person identified as prior defendant
Common Scenarios
These hypothetical scenarios illustrate how Texas Penal Code § 49.04 applies. They are educational examples — not predictions about any specific case.
Scenario 1: DWI with BAC at or above 0.08
A defendant who is stopped while driving on a Frisco roadway and provides a breath specimen showing a BAC of 0.10. Under § 49.04 with the definition in § 49.01(2)(B), this conduct could constitute DWI based on the per se intoxication element.
Key consideration: Breath-test results are often challenged on calibration, observation-period, and admissibility grounds under Mata v. State and progeny.
Scenario 2: DWI by loss of normal faculties
A defendant who is alleged to have driven while not having normal use of mental or physical faculties due to alcohol or drugs. Under § 49.04 with § 49.01(2)(A), this conduct could constitute DWI based on the impairment definition.
Key consideration: The 'normal use' standard means the State can prove DWI without any chemical test — through field-sobriety tests, officer observations, and circumstantial evidence.
Scenario 3: DWI with BAC 0.15 or higher
A defendant who tests at 0.15 BAC or higher. Under § 49.04(d), this conduct is enhanced from Class B to Class A misdemeanor.
Key consideration: The 0.15 enhancement applies at the time of testing, not at the time of driving — a key issue for retrograde-extrapolation evidence.
Scenario 4: DWI with open container
A defendant who is found to have an open container of alcohol in the vehicle while DWI. Under § 49.04(c), the minimum confinement increases from a 72-hour minimum to a 6-day minimum.
Key consideration: Open-container enhancements only apply when the State proves the container was in the passenger compartment of the vehicle while operating.
Scenario 5: DWI with child passenger
A defendant who drives while intoxicated with a passenger under 15. Under § 49.045, this conduct is the separate offense of DWI with Child Passenger — a state-jail felony.
Key consideration: DWI with Child Passenger is charged under § 49.045 rather than § 49.04; both can apply to the same incident only if multiple intoxication offenses are alleged.
These are hypothetical educational scenarios. They do not reflect actual cases handled by L and L Law Group, PLLC, and outcomes vary based on facts, evidence, and legal representation. For a confidential, fact-specific discussion of a real case, call (972) 370-5060 or email info@landllawgroup.com.
Notable Case Law
Texas appellate courts have repeatedly construed Penal Code § 49.04. The decisions below are reference points the defense uses when framing motions, jury arguments, and trial strategy.
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Mata v. State, 46 S.W.3d 902, Tex. Crim. App. 2001
Established the standard for admissibility of retrograde-extrapolation testimony in DWI prosecutions, requiring a foundational showing of reliability under Daubert / Kelly.
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Kirsch v. State, 306 S.W.3d 738, Tex. Crim. App. 2010
Addressed the per se intoxication theory under Penal Code § 49.01(2)(B) and the State's burden to link the BAC test result to the time of driving.
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State v. Garcia, 569 S.W.3d 142, Tex. Crim. App. 2018
Addressed warrant requirements for blood draws after Birchfield v. North Dakota and the limits of implied-consent justifications in DWI investigations.
Case law evolves; verify current status before relying on any holding. Citations are accurate as of 2026-05-19. For a case-specific analysis of how recent decisions affect a particular charge, call L and L Law Group at (972) 370-5060 or email info@landllawgroup.com.
Compendiums, calculators & related sections
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Last reviewed: 2026-05-13 by Njeri London and Reggie London, co-founding partners, L and L Law Group, PLLC. This content is reviewed for accuracy at least every 12 months and when statutory or case-law changes occur.
Attorney Advertising Disclosure. This content is for general informational purposes only and is not legal advice. Reading this content or contacting L and L Law Group, PLLC through this website does not create an attorney-client relationship. Prior results do not guarantee a similar outcome. Past performance is not a guarantee of future results.
About the Authors
Njeri London
Co-Founding Partner
Texas Bar No. 24043266. Admitted: TXND, TXED, 5th Circuit. Thurgood Marshall School of Law. Focus: Fourth Amendment motion practice, drug-crime defense, federal cases.
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Reggie London
Co-Founding Partner
Texas Bar No. 24043514. Former Dallas County Assistant District Attorney. Extensive felony trial experience including DWI dockets.
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