What Constitutes Felony DWI in Texas

What Constitutes Felony DWI in Texas
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A DWI can turn into a felony easily. It is important to know what makes a DWI rise to a felony. It is even more important to hire a lawyer if you’re facing a felony DWI. A felony DWI comes with a lot harsher punishments and is a serious charge. Hiring an experienced DWI lawyer should be your first priority.

Offenses that Lead to a Felony DWI

There are four different offenses that can cause your DWI to become a felony in Texas.

The Third DWI

If you have been convicted of two DWIs in the past, your third (or more) will be a third-degree felony. There is no time limit on this. If, for example, you were convicted of driving while intoxicated in 2005 and again in 2008, your next DWI (even almost two decades later) will be a felony. Any subsequent DWI after the third will be a felony as well.

The punishment range on a third-degree felony is anywhere between 2 years and 10 years in prison. You can also be fined up to $10,000. If you are convicted of a felony DWI and you have previously been to prison, the punishment range is enhanced. If you’ve been to prison once before, it is now a second-degree felony, with a punishment range from 2 years to 20 years in prison. If you’ve been to prison twice before, the punishment changes from a minimum of 25 years to life imprisonment.

As a side note, if you were convicted of an intoxication manslaughter in Texas or a similar crime in another state, then your second DWI in Texas would rise to the level of a felony.

DWI With the Presence of Children

You can also be charged with a felony DWI if there is a child 15 years old or younger in the car with you when you are arrested.

This would be considered a state jail felony. The punishment range is anywhere from 180 days up to 2 years in a state jail facility. The fine is up to $10,000. The state jail facility is a state-run facility but still has prison-like conditions.

Intoxication Assault

If your DWI accident causes serious bodily injury to another person, you will be charged with intoxication assault. It doesn’t matter how many prior DWIs you have had. It will automatically result in a felony charge. The injured party can be in your car, another car, a pedestrian, etc.

Serious bodily harm is defined as an “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.”

This would result in a third-degree felony. It has a punishment range of 2-10 years in prison and a fine up to $10,000.

The DWI would escalate to a second-degree felony if the person injured suffered a traumatic brain injury, resulting in a “persistent vegetative state.”

Note, this would also rise to a second-degree felony if the individual harmed were an on-duty firefighter or emergency services provider. It would rise to a first-degree felony if the individual harmed were an on-duty peace officer or judge.

Intoxication Manslaughter

Intoxication manslaughter is the most serious felony DWI charge. A person commits intoxication manslaughter in Texas when the person “operates a motor vehicle in a public place, operates an aircraft, [or] a watercraft … and is intoxicated and by the reason of that intoxication causes the death of another by accident or mistake.” Texas Penal Code § 49.08.

In simple terms, intoxication manslaughter occurs when a person is committing the crime of DWI and that intoxication causes the death of another person by accident or by mistake. The person can be in the same car as you or in another car involved in the accident.

What could be a regular DWI can take a serious turn if you are involved in an accident. If the other people involved in the accident are injured, and later in the hospital, they pass away, your DWI charge will quickly be enhanced to an intoxication manslaughter charge.

This is a second-degree felony. The punishment range on a second-degree felony is anywhere between 2 and 20 years in prison and a fine up $10,000.


These are all serious charges that will stay on your criminal record forever and may impact your ability to get a job in the future. Even more important is that all of the felony DWI charges can lead to prison time. This is why it is essential to hire a criminal defense lawyer experienced in defending felony DWIs to fight your DWI charge and try and keep you out of prison.

Deandra Grant

Deandra M. Grant, JD, GC, MS is a 27-year criminal defense attorney and forensic consultant. She is the Managing Partner of Hamilton Grant PC’s five offices in DFW and Austin. A national speaker on DWI law, science and trial skills, as well as the co-author of the annually updated The Texas DWI Manual, Deandra is known as “The Lawyer Lawyers Call”. She’s also VP of Living the Doxie Dream Rescue and Sanctuary in Royse City. When not “lawyering”, Deandra is a wife, mom, painter, wine collector and dog rescuer.

Comments 1

  1. Danny Lopez says:

    I received a 3rd DWI this weekend in Frisco. I would like to set up a consultation as soon as possible. I drive for a living so I need to know what to do about my license. Thank you so much for your help!

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