Penal Code · §49.04

Driving While Intoxicated (DWI)

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

Class B misdemeanor 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.

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

0.15+ stays Class A; 3rd or more is 3rd degree felony 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.

Q: 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?

DWI w/ BAC 0.15 or more — Class A misdemeanor 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.

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.

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

Key points

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 to
BAC 0.15 or more at time of analysis	Class A misdemeanor
Open container in operator's immediate possession	Class B with 6-day jail minimum
Operating in a school crossing zone while the reduced speed limit applies	State jail felony
1 prior intoxication-related conviction (DWI 2nd)	Class A misdemeanor
2+ prior intoxication-related convictions (DWI 3rd+)	3rd degree felony

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Worked examples

Worked example 1

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

Class C misdemeanor
Class B misdemeanor Correct
Class A misdemeanor
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?

0.15+ stays Class A; 3rd or more is 3rd degree felony Correct
Both are 3rd degree felonies
0.15+ is Class A; 3rd or more is 2nd degree felony
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?

Public Intoxication — Class C misdemeanor
DWI 1st — Class B misdemeanor
DWI w/ BAC 0.15 or more — Class A misdemeanor Correct
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)