A shocked driver after a DWI incident

When is a DWI a felony?

By Jose Ceja
Managing Attorney

The vast majority of DWIs filed in Texas and in Harris County are filed as misdemeanors. Unless there are certain aggravating factors present, a first-time DWI will be charged as a misdemeanor. Although a misdemeanor DWI can still negatively impact a person’s record, a felony is far more serious and problematic. This post discusses the situation where a DWI can be filed as a felony and what potential punishment a particular DWI may carry. 

In Texas, a first-time DWI is typically filed as Class “B” misdemeanor, carrying a range of punishment of up to 180 days in jail and a $2000 file. If there is a breath or blood result of .15 or higher, a first-time DWI can be filed as a Class “A” misdemeanor, punishable by up to a year in jail and a $4000 fine. In the Houston area and throughout Texas, the vast majority of first-time DWI arrests are charged as Class “A” or Class “B” misdemeanors. 

Under Texas law, however, there are several instances where a first-time DWI can be filed as a felony. When a first-time DWI is filed as a felony in Texas, that is because certain aggravating factors are present that make the punishment much worse. The situations where a first-time DWI is filed as a felony include:

  • DWI with a child passenger: A DWI with a child passenger is a DWI where the driver is alleged to have been intoxicated and had a child in the car who was younger than 15 years of age. DWI with a child passenger is charged as a State Jail Felony punishable by 180 days to 2 years in jail, regardless of whether the defendant had any criminal history or a prior DWI. 
  • Intoxication Assault: Intoxication assault is a DWI where the driver is involved in an accident that results in serious bodily injury. In an intoxication assault case, the intoxication has to have been a cause of the accident (in some cases, it may be that the accident was the result of some other cause, like the other driver’s negligence). For purposes of the intoxication assault statute, “serious bodily injury” is defined as injury that creates a substantial risk of death or that causes the serious permanent disfigurement or protracted loss of an organ. A first-time DWI can be charged as intoxication assault. Intoxication assault is punishable as a third-degree felony, punishably up 2-10 years in prison. 
  • Intoxication Manslaughter: Intoxication manslaughter is a DWI that results in the death of a person. Like intoxication assault, the intoxication of the defendant must have been the cause of the death. A first-time DWI can be charged as intoxication manslaughter. Unless there are additional aggravating factors present, intoxication manslaughter is a second-degree felony, punishable by 2-20 years. 

When a defendant has prior DWIs or DWI-related offenses on his record there are additional instances where a DWI can be filed as a felony. The most common situation is where a defendant has two or more prior DWI convictions. A DWI third or more is filed a third-degree felony, punishable by 2-10 years in prison (this can be increased to a second-degree felony or higher if a defendant has prior felony convictions). If a defendant has a prior conviction for intoxication manslaughter, a subsequent DWI arrest will be charged as a third-degree felony. 

An experienced DWI attorney should have many goals when representing a client who is facing a felony. One of the most important goals is doing everything possible to avoid a felony conviction. In addition to steeper potential criminal penalties, a felony carries a higher stigma and can have a much worse impact on a person’s criminal record and ability to find work. If a defendant is a United States citizen, a felony conviction could have disastrous consequences on a person’s immigration status or their ability to become a United States citizen. 

Ceja Law Firm is experienced in representing clients charged with all DWI-related offenses through the Greater Houston area. Attorney Jose Ceja is a former prosecutor who has successfully handled hundreds of DWIs and has had extensive training in all aspects of DWI defense. If you are charged with a DWI anywhere in the Greater Houston area, Cela Law Firm is an excellent choice. Contact our team today.

About the Author
Jose Ceja is the managing attorney of Ceja Law Firm. He has practiced law since 2007 and has devoted his career to the practice of criminal law. Mr. Ceja began his legal career as a felony drug prosecutor, where he prosecuted drug, gang, and violent offenses. Mr. Ceja has first or second chaired almost 100 trials, including murders, drug cases, DWIs, and assaults. In his career as a defense attorney, he has regularly obtained dismissals, not guilty verdicts, and grand jury “no bills” in a wide variety of cases.
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