Penal Code · §49.04

Driving While Intoxicated (DWI)

Intoxicated while operating a motor vehicle in a public place. Intoxicated = (A) loss of normal use of mental or physical faculties due to alcohol/drugs/combination, OR (B) BAC 0.08 or more.

To prove this offense, the State must establish each of the following elements: Intoxicated (per §49.01); Operating a motor vehicle; In a public place; 1st offense: Class B (72-hr min); 6-day min with open container.

The base classification is Class B misdemeanor (1st offense), with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Elements you must prove

  • Intoxicated (per §49.01)
  • Operating a motor vehicle
  • In a public place
  • 1st offense: Class B (72-hr min); 6-day min with open container
Texas Law — Charge Details
Class B Misd. → 3rd Degree Felony
Offense
Driving While Intoxicated (DWI)
Statute
Tex. Penal Code §49.04
Classification
Class B misdemeanor (1st offense)

Intoxicated while operating a motor vehicle in a public place. Intoxicated = (A) loss of normal use of mental or physical faculties due to alcohol/drugs/combination, OR (B) BAC 0.08 or more.

Potential Penalty Enhancements
If this condition applies…Charge escalates toStatute
BAC 0.15 or more at time of analysisClass A misdemeanor§49.04(d)
Open container in operator's immediate possessionClass B with 6-day jail minimum§49.04(c)
1 prior intoxication-related conviction (DWI 2nd)Class A misdemeanor§49.09(a)
2+ prior intoxication-related convictions (DWI 3rd+)3rd degree felony§49.09(b)

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Worked examples

Worked example 1

First-offense DWI under §49.04 is generally what level of offense?

  1. Class C misdemeanor
  2. Class B misdemeanor Correct
  3. Class A misdemeanor
  4. State jail felony
Why: First-offense DWI is a Class B misdemeanor with a 72-hour mandatory minimum confinement; minimum 6 days if an open container of alcohol was in the immediate possession of the person operating the vehicle.
Statute: Tex. Penal Code §49.04
Worked example 2

DWI by a person with two or more prior intoxication convictions ('DWI 3rd or more') or DWI with BAC 0.15+ is what?

  1. 0.15+ stays Class A; 3rd or more is 3rd degree felony Correct
  2. Both are 3rd degree felonies
  3. 0.15+ is Class A; 3rd or more is 2nd degree felony
  4. Both are state jail felonies
Why: DWI with BAC of 0.15 or more is a Class A misdemeanor. DWI by a person with two or more priors is a 3rd degree felony.
Statute: Tex. Penal Code §49.04(d) (BAC 0.15+); §49.09(b) (DWI 3rd+)
Worked example 3

A driver swerving across lanes is stopped. He has slurred speech, smells of alcohol, and a breath analysis shows 0.18 BAC. He has no prior intoxication-related convictions. Most appropriate primary charge?

  1. Public Intoxication — Class C misdemeanor
  2. DWI 1st — Class B misdemeanor
  3. DWI w/ BAC 0.15 or more — Class A misdemeanor Correct
  4. DWI 3rd or more — 3rd degree felony
Why: DWI is a Class B by default, but if the analysis shows a BAC of 0.15 or more at the time of analysis, it is a Class A misdemeanor — even on a first offense.
Statute: Tex. Penal Code §49.04(d)