DWI in Texas


Texas DWI Laws

As mentioned previously, the Texas DWI laws are extremely complex and the law enforcement very aggressive. For many people, a DWI conviction is a scary and bewildering first encounter with Texas law, not the least because of the legal jargon that is not part of 'normal' life. We give explanations of some common terms and Texas DWI laws below to help make this a little easier.

What is DWI?

Section 49.04 of the Texas DWI laws (the Texas Penal Code) state that a person who is intoxicated while operating a motor vehicle in a public place has committed a "Driving While Intoxicated" (DWI) offense, a Class B misdemeanor with a minimum of 72 hours in jail.

Definition of Intoxication

The Texas Penal Codedefines intoxication as:

  • Section 49.01(2)(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..
  • Section 49.01(2)(b):"having an alcohol concentration of .08 or more."

In addition, the following laws pertain to specific variations of a DWI offense:

DWI with a Child Passenger

Section 49.045 of the Penal Code states that driving while intoxicated with the vehicle being occupied by a passenger who is younger than 15 years of age is a state jail felony.

DWI with an Open Container

Section 49.04 of the Penal Code (the DWI laws in Texas) also states that driving while intoxicated while the driver had an open container of alcohol in the person's immediate possession is a Class B misdemeanor, with a minimum term of confinement of six days.

Open Container Law

Section 49.031 of the Texas DWI laws states that a person commits an offense if he or she knowingly has an open container of alcohol in the passenger area of a motor vehicle that is on a public highway, regardless of whether it is being driven or is parked. Such an offense is a Class C misdemeanor with a fine of up to $500.


If at the time of the offense the person was a passenger in:

  • 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
  • The living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.


"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.

"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.

"Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other 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.

Penalties for a DWI in Texas:

First DWI offense

  • $2,000 maximim fine
  • Up to 6 months in jail
  • Up to 1 year driver's license suspension
  • $1,000 annual driver's license fee for 3 years

In Texas, if there are no other extenuating circumstances, a first DWI offense will likely get you probation (community supervision) of between 1 to 2 years. Common conditions can include among others:

  • DWI education class within 6 months of the DWI conviction which will help you avoid the 1-year license suspension.
  • Perform certain mandated hours of community service
  • Pay a Supervisory Fee every month
  • Commit no more offenses
  • Don't change your address or job without notifying the supervisory staff
  • Submit a probability of future DWI evaluation

Second DWI offense

  • $4,000 maximum fine
  • Up to 1 year in jail
  • Up to 2 years drivers' license suspension
  • $1,500 annual driver's license fee for 3 years

Third DWI offense

  • $10,000 maximum fine
  • Up to 10 years in jail
  • Up to 2 years driver' license suspension
  • $2,000 annual driver's license fee for 3 years

DWI Surcharge

If you are convicted of a DWI in Texas, you will be required to pay an annual surcharge of between $1,000 and $2,000 depending on the circumstances. The surcharges have to be paid for a total of 3 years after a DWI conviction.

In addition, the following conditions may make the above offenses more severe:

First offense DWI with an open alcohol container will increase the penalty to a minimum 6 days in jail in addition to the other 1st offense penalties.

If serious injury was caused because of a DWI, the offense would be considered an intoxication assault with a penalty of a minimum 2 years in prision upto 10 years and a possible fine of up to $10,000.

If death was caused because of a DWI, the offense would be considered intoxicated manslaughter which carries a penalty of between 2 to 20 years in prison and up to $10,000 in fines.

These are some of the more important parts of the Texas DWI laws and the consequences but by no means the only ones that will matter to you in your own situation. Go to top of page

Related article:

What To Do After Being Stopped By The Police

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