Transportation Code · §49.04

Driving While Intoxicated (DWI)

Q: First-offense DWI is a Class B misdemeanor with a mandatory minimum of how many hours' confinement?

72 hours (6 days minimum if open container) First-offense DWI: Class B; minimum 72 hours confinement; minimum 6 days if an open container of alcohol was in the immediate possession of the operator.

Q: DWI with BAC 0.15 or more at the time of analysis is what level of offense (first offense)?

Class A misdemeanor DWI with BAC 0.15 or higher at the time of analysis 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 is a Class B misdemeanor with a mandatory minimum of how many hours' confinement?

24 hours
48 hours
72 hours (6 days minimum if open container) Correct
120 hours

Why: First-offense DWI: Class B; minimum 72 hours confinement; minimum 6 days if an open container of alcohol was in the immediate possession of the operator.

Statute: Tex. Penal Code §49.04

Worked example 2

DWI with BAC 0.15 or more at the time of analysis is what level of offense (first offense)?

Class B misdemeanor
Class A misdemeanor Correct
State jail felony
3rd degree felony

Why: DWI with BAC 0.15 or higher at the time of analysis is a Class A misdemeanor — even on a first offense.

Statute: Tex. Penal Code §49.04(d)

Worked example 3

A driver under 21 with any detectable amount of alcohol in his system while operating a motor vehicle in a public place commits:

DWI
Driving Under the Influence (DUI) by a minor — Tex. Alc. Bev. Code §106.041 — Class C misdemeanor (DWI can also be charged if the minor is intoxicated) Correct
Public Intoxication only
No offense

Why: DUI by a minor (under 21) under §106.041 — operating a motor vehicle in a public place, or a watercraft, with any detectable amount of alcohol — is a separate offense from DWI and not a lesser included offense of it (§106.041(g)). If the minor is intoxicated under §49.01, DWI can also be charged.

Statute: Tex. Alc. Bev. Code §106.041 (Driving Under the Influence by Minor); Tex. Penal Code §49.04 (DWI)

Statutory definitions for this topic

Operating Tex. Penal Code §49.04; Texas case law: Construed broadly under Texas case law. Movement of the vehicle is not required; circumstantial evidence — driver alone in driver's seat, running engine, keys in ignition, recent crash — can support a finding of operation.