When A Drunk Driving Charge Becomes A Serious Felony Offense

When A Drunk Driving Charge Becomes A Serious Felony Offense

If you have been accused of a DWI in Texas, then you need to be aware that a DWI can certainly turn into a serious felony in the right facts and circumstances. In Texas, first-time DWIs are usually charged as misdemeanors; however, whether this is considered a misdemeanor or a felony hugely depends on prior offenses, aggravating factors, and whether anyone got injured due to your speculated intoxication.

When Does A DWI Become A Felony In Texas?

It’s merely a matter of specific details surrounding one’s arrest that distinguishes a misdemeanor from a felony DWI in Texas. The following are potential scenarios that could raise a DWI up to a felony charge:

1. Third DWI Offense-Texas Penal Code § 49.09

One of the more standard ways a DWI becomes a felony in Texas is if you have two prior convictions for DWI. Under Texas law, if a person has been charged with a third DWI offense, then it automatically gets upgraded to a third-degree felony. A third-degree felony involves serious penalties like:

•     2 to 10 years in prison
•     A fine of up to $10,000
•     Suspension of driving license for a maximum period of two years

Note that one can also use prior DWI convictions from other states to enhance a DWI charge to a felony in Texas; hence, one should be well conversant with their full legal history.

2. DWI With Child Passenger (Texas Penal Code § 49.045)

If you are charged with DWI and there is a child passenger in the vehicle under the age of 15, then it automatically charges you with a state jail felony. The possible penalties that come with a state jail felony include:

•     180 days to 2 years in prison
•     Up to a $10,000 fine

Driving while intoxicated in Texas with a child passenger is taken very seriously. Even if it’s your first DWI offense, the presence of a minor can quickly turn what would otherwise be a misdemeanor charge into a felony. Besides possible criminal penalties, involvement by Child Protective Services may occur, and you may face an investigation into the well-being of the child.

3. Intoxication Assault (Texas Penal Code § 49.07)

Another situation in which a DWI may be charged as a felony is when your driving under the influence results in the serious bodily injury of another person. This offense is what’s commonly known as intoxication assault. Intoxication assault is a third-degree felony under Texas law. To be convicted of intoxication assault, the prosecution has to prove that your intoxication was indeed the cause of the accident and injury.

Serious bodily injury is an injury that creates a substantial risk of death, causes serious permanent disfigurement, or results in protracted loss or impairment of bodily function. Penalties for intoxication assault include:

•     2 to 10 years of imprisonment
•     A fine of up to $10,000
•     Possible driver’s license suspension

If the injured person was a peace officer, firefighter, or emergency medical service worker, an enhancement can be further made to the charge and the punishment will be much graver.

4. Intoxication Manslaughter (Texas Penal Code § 49.08)

The most serious felony DWI charge in Texas is intoxication manslaughter death caused by intoxicated driving. Intoxication manslaughter is a second-degree felony, and the punishment is very serious:

•     2-20 years in the Texas Department of Criminal Justice
•     A fine of up to $10,000

In intoxication manslaughter cases, the prosecution must be able to prove that your intoxication caused the accident that resulted in the death. For the state, this is an aggressively prosecuted charge, and quite frankly, it doesn’t get any bigger than that for an accused. 

5. Felony DWI With Prior Convictions For Intoxication Assault Or Manslaughter (Texas Penal Code § 49.09)

If you have previously been convicted of intoxication assault or intoxication manslaughter, and you are later charged with another DWI, the new charge can be enhanced to a second-degree felony. The penalties for a second-degree felony include:

•     2-20 years in prison
•     Up to a $10,000 fine

Texas law frowns significantly upon multiple DWI offenders and those who have caused injury and death because of their intoxicated driving. If you have a previous felony conviction based on a DWI offense, then any subsequent DWI offense will likely face increased punishment.

Defending Against A Felony DWI Charge

A felony DWI charge is serious; however, you must remember that you do have legal rights and options. There are several potential defenses to a charge of DWI, and which defense strategy is best will vary depending on the specific facts of your case. The following are a few common defenses for DWI charges.

Challenge to the Traffic Stop – Police must have reasonable suspicion to stop you. If the officer did not have a good enough reason to stop you, then the traffic stop is illegal, and the evidence may be suppressed.

Questioning Field Sobriety Tests – Field sobriety tests are rather subjective, and factors include medical conditions, nervousness, and even uneven surfaces that provide scenarios where tests come back inaccurately. A good attorney will question the results.

Breathalyzer or Blood Test Accuracy – Breathalyzer machines and methods of blood testing are not perfect, and one could dispute results if tests were given incorrectly or the machine was off calibration.

Working with a seasoned DWI attorney will greatly improve your chances of having the charges reduced or dismissed against you. You have to act quickly because the prosecution will likewise take that very moment you get arrested to start building the case against you.

Texas DWI Frequently Asked Questions

How Does A Misdemeanor Differ From A Felony DWI In Texas?

In Texas, a misdemeanor DWI is normally reserved for first-time offenders without any aggravating factors, meaning there have been no prior convictions and no harm to others. On the other hand, a felony DWI carries higher factors, such as multiple DWI offenses, causing injury or death, or having a child passenger in the vehicle. Felony DWI convictions are punished more severely, with longer prison sentences and higher fines.

How Long Does A DWI Stay On My Record In Texas?

In Texas, a conviction of DWI will remain on one’s criminal record for life. Unlike some other states, if convicted, Texas will not allow expunction of the DWI conviction. You may, however, be able to get the arrest record removed or have it expunged if your case has been dismissed or you were acquitted of the charge. Depending on certain circumstances, a case may offer deferred adjudication, wherein one avoids a formal conviction on one’s record.

Is Probation Possible For A Felony DWI In Texas?

Yes, probation is sometimes referred to as community supervision and may be an option in certain felony DWI cases. However, for felony DWI, probation will generally be much more strict than a misdemeanor conviction. Probation conditions may include mandatory alcohol treatment programs, community service, and regular reporting to a probation officer. If you violate the terms of probation, you could face additional jail time.

Will I Lose My Driver’s License After A Felony DWI Conviction?

Yes. A felony DWI will lead to the suspension or revocation of your driver’s license. The length of time varies depending on several factors about your case, including your prior offenses and whether you refused to submit to a breath or blood test. You could be granted an occupational driver’s license, which allows you to drive to and from work or school while your license is suspended.

What Is An Ignition Interlock Device, And Will I Have To Install One?

An Ignition Interlock Device (IID) is a breathalyzer that is installed in your vehicle. The car will not start unless you blow into it and it detects that you are not intoxicated. Texas law demands that judges order an IID installation for a second or subsequent DWI conviction and also for individuals convicted of DWI with a BAC of at least 0.15%. Typically, the installation and use of the IID serve as conditions for probation or during the time their license is suspended.

How Can A DWI Attorney Help A Person Facing A Felony DWI Charge?

A good DWI attorney will be able to assist in numerous ways: reviewing the evidence against you, finding any legal or procedural mistakes law enforcement may have made, and negotiating with the prosecution for a pretrial disposition that reduces or dismisses the charges. Depending on the facts of your case, it may be possible for your attorney to negotiate the charges down from a felony to a misdemeanor, which could greatly reduce the penalties you will suffer.

Contact Our Galveston Felony DWI Defense Attorney For Your Free Consultation

If you or a loved one has been accused of felony DWI in Texas, it is highly recommended that you seek legal representation as soon as possible. Here at Mark Diaz & Associates, we will be able to provide the required legal defense necessary to protect you and fight for the best result possible in your case. A felony conviction for DWI can impact and alter a person’s life well into the future, but it is a battle that you do not have to face or endure alone.

Contact our Galveston felony DWI defense attorney at Mark Diaz & Associates by calling 409-515-6170 to receive your free consultation. Serving Galveston, Houston, and beyond, we pride ourselves on the opportunity to serve clients with professionalism and integrity. Don’t wait one more minute; take the time now to speak with a consultant about your options to start formulating a defense. The sooner you move forward, the greater your chance of success in your case.