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Overview: Felony Driving While Intoxicated - 3rd or More in Texas


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Many people arrested for DWI think they are automatically charged with a felony.  Undoubtedly, this is the result from decades of special interest and government propaganda spilling about the evils of drinking and driving.  However, a conventional first time DWI arrest is generally a misdemeanor offense exposing minimal jail time, if any.  A second DWI arrest that doesn’t involve minor children or injury is also a misdemeanor.  Absent a collision causing serious bodily injury or death, a person must have 2 prior DWI convictions before they can be charged with a felony DWI in Texas.   Many US states do not have felony DWI laws that don’t include serious bodily injury or death.  Also, many states require a certain number of convictions within a time frame (typically between 5-10 years) before a person can be charged with a felony DWI/DUI.

Felony DWI charges in Texas start as a Third degree felony with a punishment range of no less than 2 years in the Texas Department of Corrections and a maximum of 10 years with a maximum fine of $10,000.   Some prior felony offense convictions can enhance or “habitualize” the charges but we won’t worry about getting into that here.  I will call the Texas 3rd degree Felony DWI the  “conventional” felony DWI only because it’s the most common.  Essentially, it’s whenever someone with two prior DWI convictions is arrested again for DWI.  The conventional felony DWI has the same elements as the misdemeanor offenses:

1) operating a motor vehicle;

2) in a public place;

3) while intoxicated (intoxicated means not having the normal use of your mental or physical faculties or a BAC .08 or greater); and

4) with 2 prior convictions for DWI.

The “priors” include convictions from another state or a federal DUI.  Texas does NOT have a look back period.  If you were convicted of DWI 50 years ago, and were arrested today, the government could use that prior conviction to enhance your current charge.  However, there are several ways to combat prior DWI/DUI convictions if you are charged with a felony.

First, if one of the prior DWIs was in Texas and before 1984, it may not count as a conviction if there was a probated sentence.  This means that if you served probation on a DWI charge instead of jail time before 1984, then case law establishes this is not a conviction that can be used to enhance a current felony DWI. On the flip side, if you did not do or complete probation, then this prior may possibly be used by Texas to enhance your DWI.  The only way to know for sure is to pull the old judgment and notice of conviction from the original case.

Another successful way to challenge a prior conviction is to obtain the certified judgments of the priors and examine them for any constitutional deficiencies.  Certain things I look for are to see if you were represented by an attorney, if you voluntarily and knowingly waived your right to an attorney and/or jury trial.   There is an old US Supreme Court case called Gideon v. Wainwright that requires all criminal defendants be given an attorney or make a knowing and voluntary waiver.  Many rural counties in Texas do things differently.  It’s kind of a good old boy system, where the defendant and the prosecutor went to high school together or the judge doesn’t formally do some of the things required by law in criminal cases.  There isn’t any real malicious intent to do things illegally it’s more like a back slap and a hand shake, court gets their money, prosecutors get their numbers, and the defendants suffer no real punishment other than the conviction on their record.  This works out for everyone involved and they go their own way and nothing ever comes of it.  But, if the defendant gets in trouble down the road and this old conviction is brought up, then it is the State’s burden to show that everything was done in accordance with law, and if it wasn’t, then it can’t be used against you.

If you have a conviction from another state or jurisdiction, then we have to look at that DWI/DUI law that you were found guilty of because Texas law requires the law be “substantially similar” to our DWI law found in the Texas Penal Code Section 49.04 for the conviction to be used as a prior for enhancement purposes.  So if you have a DWI/DUI conviction in a state like California, Colorado, Missouri, etc, Texas may not be able to use that conviction to enhance a current DWI charge in this state.  For example, in Colorado, you may have been convicted of “Driving While Ability Impaired” (DWAI) which is the statute prohibiting someone from driving with a BAC between .05 and .08.  This conviction cannot be used against you in Texas for enhancement purposes because DWI in Texas requires a BAC .08 or greater.  Accordingly, the DWAI statute is not  “substantially similar” to our statute.

When you or someone you know find yourself charged with a felony DWI offense, you have to hire a lawyer that knows how to attack the allegations.  DWIs are complicated enough, find a lawyer who knows what to look for and make a plan.  Your future and liberty are at risk.