TEXAS PENAL CODE 49.04
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS
CHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES
Sec. 49.01. DEFINITIONS. In this chapter:
(1) “Alcohol concentration” means the number of grams of alcohol per:
- (A) 210 liters of breath;
- (B) 100 milliliters of blood; or
- (C) 67 milliliters of urine.
(2) “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.
(3) ” Motor vehicle” has the meaning assigned by Section 32.34(a).
(4) ” Watercraft; means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.
(5) ” Amusement ride” has the meaning assigned by Section 2151.002, Occupations Code.
(6) ” Mobile amusement ride” has the meaning assigned by Section 2151.002, Occupations Code.
Sec. 49.02. PUBLIC INTOXICATION.
(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.
(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.
(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person’s professional medical treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(d) An offense under this section is not a lesser included offense under Section 49.04.
(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.
Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE.
(a) In this section:
- (1) ” Open container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
- (2) ” Passenger area of a motor vehicle” means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
- (A) a glove compartment or similar storage container that is locked;
- (B) the trunk of a vehicle; or
- (C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
- (3) ” Public highway” means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or another publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
- (1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
- (2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.
Sec. 49.04. DRIVING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) 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.
Sec. 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER.
(a) A person commits an offense if:
- (1) the person is intoxicated while operating a motor vehicle in a public place; and
- (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
(b) An offense under this section is a state jail felony.
Sec. 49.05. FLYING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating an aircraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Sec. 49.06. BOATING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating a watercraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Sec. 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride 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.
Sec. 49.07. INTOXICATION ASSAULT.
(a) A person commits an offense if the person, by accident or mistake:
(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.
(b) In this section, “serious bodily injury” means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.
Sec. 49.08. INTOXICATION MANSLAUGHTER.
(a) A person commits an offense if the person:
(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and
(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
(b) Except as provided by Section 49.09, an offense under this section is a felony of the second degree.
So, if you do not agree to enter a guilty plea and, instead, elect to fight your DWI charges, you may have an almost 45 percent chance of having your charges reduced or dismissed.How do you win a DWI case in Texas? ›
To beat a DWI charge in Texas, you must assert and protect your constitutional rights. You must utilize due process to confront all witnesses and challenge all evidence. This means disputing reasonable suspicion, probable cause, and all forensic evidence. You can't win if you don't fight.Do I need a lawyer for a DWI in Texas? ›
Yes. Texas has some of the harshest penalties in the nation for DWI and other intoxication offenses. If you have been charged with DWI it is critical to hire an attorney. Your choice in representation can make the difference between a temporary inconvenience and a lifelong criminal conviction.Can DWI probation be reduced in Texas? ›
Judges generally require DWI defendants to complete the probationary period that the judge first imposes. But the judge has the statutory power. You will very likely need the special skills of a premier Texas DWI Specialist attorney to convince a judge to exercise that power to terminate probation early.Can you appeal a DWI in Texas? ›
How Do You Appeal a DWI in Texas? To appeal a Texas drunk driving conviction, you must file a motion with the Clerk of the Court where your original trial took place. You may also file a Motion for New Trial, which will be your next step in the process if the court grants your appeal.Is jail time mandatory for 1st DWI in Texas? ›
While jail time isn't mandatory for a first DWI conviction in Texas, it can be a sentence in this kind of case. However, you could avoid jail time, get your penalties reduced, or even have your case dismissed with a good DWI defense lawyer.Can you plead no contest to a DWI in Texas? ›
If you want to avoid a long courtroom fight without admitting to or accepting the driving while intoxicated (DWI) charge against you, a no-contest plea is better than pleading guilty in a Texas DWI case. However, pleading no contest will not protect you from the stringent penalties of a DWI conviction.Can I get my license back after DWI in Texas? ›
How Can You Get Your License Back After a Texas DWI? You can appeal a DWI driver's license suspension; however, you must file your appeal within 30 days of the start of your suspension. If the appeals court reverses the original suspension, TxDPS will reissue your license.What is the best case scenario for a DUI? ›
If you have been pulled over for allegedly driving under the influence, the best-case scenario you could hope for is that the officer(s) failed to gather enough evidence against you or made procedural, technical, or constitutional mistakes before, during or following your arrest.How much does a lawyer cost for DWI in Texas? ›
In short, your DWI lawyer costs are highly dependent on your particular lawyer and the facts of your case. However, you can expect to easily pay between $1,000 and $5,000 for a simple case that doesn't go to trial, and up to $10,000 for a case that does go in front of a judge.
DWI (driving while intoxicated) is a criminal offense that closes off some job opportunities for you. However, while a DWI limits your choices for employment in Texas, you will still be able to apply and get any job that does not require a license.Can you get Deferred Adjudication for DWI in Texas? ›
Deferred Adjudication is only available for a DWI first-offense, if the incident did not involve an accident, and if the driver's blood alcohol concentration (BAC) was below 0.15. Commercially licensed drivers are barred from receiving Deferred Adjudication for any moving offense, including DWI.How can I get off DUI probation early in Texas? ›
So, no, you cannot be released early from probation on a DWI conviction. However, in some counties you can go onto “non-reporting” status if you have successfully completed all of your probation terms, and you may also be able to have the interlock device removed.Can I drink while on probation in Texas? ›
While on probation in Texas, you are expected to follow your conditions, and not break the law or use alcohol and/or drugs. You may also be ordered to complete classes and programs. Below are frequently asked questions about conditions of probation.How long does it take for a DWI to come off your record in Texas? ›
A DWI charge stays on the record forever. If the charge was dismissed without probation, it is eligible for removal and deletion through expunction. If the charge resulted in a conviction, it may be eligible to be sealed through an order of nondisclosure.What can a DWI be reduced to in Texas? ›
Reduced DWI Charge Examples
Examples of reducing a DWI charge include: Getting a Felony DWI Reduced to a Misdemeanor like Obstruction of a Highway or Obstruction of a Passageway. Reducing DWI Charges to Reckless Driving. Filing a Pretrial Motion to Remove Illegally Obtained BAC Evidence.
- Join a Rehabilitation Program. ...
- Seek Professional Help. ...
- Install and Keep an Ignition Interlock Device. ...
- Pick Up a Hobby. ...
- Lean on Friends and Family. ...
- Contact a DUI Attorney.
A DWI conviction in Texas can be sealed by filing a petition for an Order of Nondisclosure.What happens in first court date for DWI in Texas? ›
In addition to addressing your ALR, you face an arraignment for your DWI. This is your first court date. You will hear the charges against you, the prosecutor's evidence, the potential statutory penalties, and then you have the opportunity to plead guilty or not guilty.Can drink driving charges be dropped? ›
Drink driving charges can be successfully defended. Even if you plead guilty, it is possible to get the sentence reduced by presenting special reasons and/or mitigating circumstances.
In first-time DWI cases, bail will usually be between $200 and $1,000. Bail will usually be higher for a second DWI or any additional drunk driving arrests. In felony DWI cases that involve an accident that caused serious injuries or death, bail could be $5,000-$10,000.Is it better to refuse a breathalyzer in Texas? ›
While there is a penalty for refusing to take a breathalyzer or a blood test, it's important to note that if you do refuse, it may be harder for the prosecutor to actually convict you of a DWI based on a lack of blood alcohol content evidence.On what grounds can a case be dismissed Texas? ›
Likewise, a judge can dismiss the case if they find no legal basis for the charge, if the defendant's rights have been violated, or if the state has failed to prove its case. Judges can dismiss a case either on their own motion or on the motion of the defendant.What happens if you plead guilty to DWI in Texas? ›
Pleading guilty to a DWI charge in Texas results in a permanent criminal conviction. Additional consequences include loss of driving privileges, gun rights, travel restrictions, and immeasurable harm to future job opportunities and college and university admission.Can I get probation for a 4th DWI in Texas? ›
Both a third and fourth DWI are 3rd degree felony offenses and may be punishable by up to 10 years in state prison, as well as fines of up to $10,000 or more, license suspension of 2 years, community service and more. Many fourth DWI convictions result in a state prison sentence without the possibility of probation.Can a 2nd DWI be reduced in Texas? ›
A Plea Could Reduce a Second DWI
DWI charges are often reduced if you, your attorney, and the prosecutor reach a plea agreement. For example, the prosecutor might reduce your DWI charge to a less serious offense – like reckless driving – if you agree to skip a trial and plead guilty.
- I am guilty.
- I am sorry.
- I have no criminal convictions/a clean driving licence/a good driving record.
- A driving ban will affect me and other people because …
- Please can I do the drink drivers' rehabilitation course.
– Fines are ”the best” outcomes for DUI, because you may risk your freedom as well. Based on the DUI crime severity, the offender may face a probation or jail time. If the conviction is for the 1st time, the probation may be up to 1 year or a jail time up to 9 months.What is the most common sentence for a DUI? ›
A jail sentence of up to 90 days is possible, but it would be very rare for a judge to order the offender to jail. Usually the offender will be ordered to serve informal (unsupervised) probation for a period of one to two years.
Up to a $2,000 fine. Up to 180 days in jail upon conviction with three mandatory days.
Keep in mind that a DUI will stay on your driving record for longer than it affects your insurance. In Texas specifically, a DUI conviction will remain on your driving record for the rest of your life. On average, a DUI raises insurance rates in Texas by 58%.How much do most lawyers charge for a DUI? ›
First-Offense DUI Lawyer Cost (Estimated)
$1,500 to $2000 – Inexperienced lawyers who will have little to no reputation for drunk driving cases. $2,500 to $3,500 – Competent attorneys who have a marginal reputation and some experience fighting a DUI charge.
Yes — DWI charges show up on a background check forever in Texas. If the DWI was dismissed without probation, it is eligible for deletion through expunction. DWI convictions can now be sealed in certain circumstances with an order of nondisclosure.Can you be a teacher with a DWI in Texas? ›
Other Consequences for a DWI Arrest or Conviction in Texas
Schools are required to conduct a background check on all applicants. With most positions receiving large numbers of applicants, it is likely that your DWI conviction will make obtaining employment as a teacher very difficult.
A DWI charge does not disqualify a person from becoming a nurse in Texas. Thousands of healthcare professionals in Texas have overcome criminal charges. Avoiding a conviction is what matters most.How common is deferred adjudication in Texas? ›
Deferred adjudication is essentially a form of probation. This form of probation is used frequently in Texas. In fact, one out of every four district court cases ends in a deferred judgment.Can I become a police officer with a deferred adjudication in Texas? ›
Yes, an adult Class A Misdemeanor conviction or court-ordered community supervision (adjudicated or deferred) is a lifetime disqualification for licensure as a peace officer or jailer in the state of Texas, unless an agency applies for and receives a waiver on your behalf from the Commission.Can I buy a gun if I was on deferred adjudication Texas? ›
Under Texas law, deferred adjudication is not a conviction and does not directly result in the loss of your right to possess a firearm – under state law. So, technically under state law, you can possess a gun while on DFAJ – unless the judge specifically ordered you not to possess a firearm.How do I get a DWI dismissed in Texas? ›
Challenging evidence is the most effective way to dismiss a DWI charge in Texas, whether it's a DWI first-offense, DWI 2nd, or even a felony DWI 3rd or more. DWI arrests are warrantless arrests, therefore everything must be challenged. If a judge suppresses evidence, the State cannot use it to prosecute.What are the 2 mandatory conditions under probation? ›
The grant of probation nis premised upon three conditions: 1)an application for probation by the offender 2)an investigation conducted by the probation and parole officer 3)a determination of by the court that the ends of justice and the best interest of the public as well as the offender shall be served thereby.
The ignition interlock can only be removed upon receipt of a court order with a court seal or vendor removal form signed by a judge or county clerk.What happens if you fail an alcohol test on probation in Texas? ›
A failed drug test while on probation can result in a warrant for your arrest, jail time, additional probation time, additional terms and conditions, more money, and a conviction.What happens if you violate DWI probation in Texas? ›
A DWI is considered a probation violation. Your arrest may lead your probation officer to file a Motion to Revoke Probation. In other words, the DWI charge can result in your probation being revoked and you returning to jail – even without a conviction.How far back can alcohol be detected in your urine? ›
Alcohol detection tests can measure alcohol in the blood for up to 6 hours, on the breath for 12 to 24 hours, urine for 12 to 24 hours (72 or more hours with more advanced detection methods), saliva for 12 to 24 hours, and hair for up to 90 days.What is the typical punishment for a DWI in Texas? ›
Up to a $2,000 fine. Up to 180 days in jail upon conviction with three mandatory days. Loss of driver license up to a year.How long does a DWI case take in Texas? ›
It usually takes 20-40 days from the date of your arrest before a misdemeanor DWI case is filed and you are issued a court date. A felony DWI must be presented to a grand jury. Therefore, the felony process is much longer. It can be several months before you are indicted and issued a court date.What state is the most lenient on DWI? ›
|Most Strict||Most Lenient|
|1- Arizona||1- South Dakota|
|2- Alaska||2- District of Columbia|
|3- Connecticut||3- Pennsylvania|
|4- West Virginia||4- North Dakota|
However, Texas doesn't have a wash-out period for DWIs—meaning a DWI conviction stays on your record and counts as a prior conviction forever.How do you get a prosecutor to drop charges? ›
There are multiple ways a defendant or their attorney can convince a prosecutor to drop criminal charges. Examples include lack of probable cause, presenting exculpatory evidence, showing police violated their rights, or partaking in a pretrial diversion program.What is one reason prosecutors may decide to dismiss cases? ›
A prosecutor may drop a criminal charge if it is determined that the evidence against the accused isn't strong enough. Or, perhaps new evidence is found which undercuts the prosecution's case against the defendant.
A decision dismissing a suit for want of evidence or proof disposes of all the matters in controversy in the suit against the plaintiff and, therefore, the decision is a decree.How much is a DWI lawyer in Texas? ›
In short, your DWI lawyer costs are highly dependent on your particular lawyer and the facts of your case. However, you can expect to easily pay between $1,000 and $5,000 for a simple case that doesn't go to trial, and up to $10,000 for a case that does go in front of a judge.Can a DWI get expunged in Texas? ›
A DWI conviction cannot be expunged in Texas. However, a DWI charge that did not result in a final conviction can be expunged in some circumstances. DWI charges that can't be expunged may be eligible to be sealed under Texas's DWI Second Chance Law.How long does it take for drink driving case to go to court? ›
As a general rule however, suspects can expect to wait around 6 weeks for the analysis of a sample. Once the police have a positive result, then the investigation is complete and a formal charge can be brought. When a suspect is charged the police will release them on bail to attend the Magistrates' Court.How long is deferred adjudication in Texas for DWI? ›
Requirements for DWI Deferred Adjudication
The maximum is 12 months. Though discretionary, Community Supervision typically requires completion of classes, participation in drug and alcohol screenings, and community service.
Every person charged with DWI in Texas faces an automatic ALR suspension of their Texas driver's license. The suspension takes effect approximately 40 days from the date of arrest. The ALR hearing is the only chance to contest the suspension.