What Each Offense Actually Carries
The first question almost everyone asks after a DWI arrest is the same one: how bad is this?
It is a fair question and it has a real answer. Texas sorts intoxicated driving into a ladder of offense levels, and where a case lands on that ladder is decided by a short list of facts: whether you have been here before, what the test showed, who was in the car, and where you were driving.
At Christian, Nisbet & Casillas, we spend a lot of time correcting what people have been told about that ladder, usually by someone who meant well. This article lays out what each level actually carries, and what decides which one you are facing.
How Texas Decides Which DWI You Are Charged With
Texas defines intoxication two ways: losing the normal use of your mental or physical faculties because of alcohol or a drug, or having an alcohol concentration of 0.08 or more. The State can go either route, and it can go the first route with no test result at all.
From there, four facts move a case up the ladder:
Prior convictions. How many, not how recent. More on that below.
The alcohol concentration. A reading of 0.15 or more at the time of analysis changes the offense level on its own.
A passenger younger than 15. That is a separate felony offense, with no prior needed.
Where you were driving. Since September 1, 2025, a school crossing zone during the reduced speed limit changes the level too.
One deadline sits outside all of this and moves first. If you gave a specimen that came back at 0.08 or higher, or refused to give one, you have 15 days from the date you received the notice of suspension to request an administrative hearing on your license. That clock runs whether or not you have been to court, and nobody will call to remind you.
“Where a case lands on the ladder is decided early, and usually by facts that can be contested.”
What Is Actually at Stake?
Here is the ladder as the Penal Code actually writes it:
A first DWI. Class B misdemeanor: up to 180 days in jail and a fine up to $2,000, with a minimum of 72 hours of confinement. The minimum rises to six days if an open container was in your immediate possession.
A first DWI with an alcohol concentration of 0.15 or more. Class A misdemeanor: up to one year and a fine up to $4,000. The statute keys this to the reading at the time of analysis, not at the time of driving, which is a distinction worth arguing about.
A second DWI. Class A misdemeanor: up to one year and a fine up to $4,000, with a minimum of 30 days of confinement.
A third DWI. Third-degree felony: two to ten years in prison and a fine up to $10,000.
A fourth, fifth or later DWI. Still a third-degree felony. There is no separate tier above the third offense in the DWI statute.
DWI with a passenger younger than 15. State jail felony: 180 days to two years and a fine up to $10,000. This is its own offense and does not require any prior.
DWI in a school crossing zone. State jail felony, for offenses committed on or after September 1, 2025.
When someone is hurt or killed. Intoxication assault is a third-degree felony. Intoxication manslaughter is a second-degree felony, and higher in some circumstances. Our article on intoxication manslaughter allegations covers those cases.
On top of the sentence, a final conviction carries a one time state traffic fine: $3,000 for a first conviction within 36 months, $4,500 for a second or later within that period, and $6,000 where the evidence shows 0.15 or more. A court must waive it on a finding of indigency.
A conviction also brings a court-ordered license suspension of 90 days to one year, separate from the administrative suspension above, and the two can stack. If you drive commercially, the stakes are different again, and our article on CDL DWI defense explains why.
What Has Changed Recently
Two changes took effect on September 1, 2025, and both apply only to offenses committed on or after that date:
DWI in a school crossing zone is now a state jail felony. Before, the same conduct was a Class B misdemeanor.
Intoxication manslaughter involving more than one death in the same criminal transaction is now a first-degree felony, carrying five to 99 years or life.
Two older changes still get missed:
The annual surcharges are gone. The Driver Responsibility Program was repealed effective September 1, 2019. People still budget for a surcharge that no longer exists. The one time state traffic fine described above took its place.
Some first time DWI cases became eligible for deferred adjudication in 2019, and a first DWI conviction can be sealed in some cases. Both paths have conditions, and eligibility is shaped by decisions made in the first weeks of a case.
What has not changed is the ladder itself. The first, second and third offense structure has been in place for years, and nothing in the 2025 session moved it.
Why These Cases Are Often Misunderstood
An arrest is not a conviction. The State still has to prove intoxication beyond a reasonable doubt, and on the first theory it has to do that with an officer's description of your speech, your balance and your eyes.
A fourth DWI is not automatically a second-degree felony. This one is repeated so often that people plead to avoid exposure they never had. A two to twenty year range can appear in a DWI case, but it comes from the repeat felony offender rule in Penal Code §12.42, which applies when the person already has a separate final felony conviction. It is not something the DWI statute does on its own, and it has nothing to do with the number four.
There is no ten year rule. Texas repealed the lookback period in 2005. A DWI conviction from 1998 counts the same as one from last year, and convictions from other states count too.
Deferred adjudication still counts. If you took deferred on an earlier intoxication case, the statute treats that as a prior conviction for enhancing the next one. People are regularly surprised by this, and it is the single most common reason a case is charged a level higher than the person expected.
“Mandatory minimum” is a federal phrase. Texas charges carry punishment ranges and, in some cases, minimum terms of confinement: 72 hours on a first, six days with an open container, 30 days on a second. Those are real, and they are not the same thing as a federal mandatory minimum.
“People plead to exposure they never had. The number of priors is a fact, and facts can be wrong.”
How We Defend First and Repeat DWI Charges
1. We Check Whether the Priors Actually Count
On a repeat case this is the first thing we look at, because it decides the offense level before anything else does. We pull the judgments, check that the person named is the client, check that the earlier plea was valid, and check that the offense is one the statute actually counts. Out of state convictions get particular attention, because they only count if the other state's offense lines up with ours.
2. We Challenge the 0.15 Analysis
A 0.15 reading is what turns a Class B into a Class A, so the analysis behind it deserves scrutiny: the instrument's maintenance and calibration records, the operator's certification, how a blood sample was drawn and stored, and how long it sat before it was tested.
3. We Examine the Stop and the Arrest
Was there reasonable suspicion for the stop and probable cause for the arrest? If not, what followed may be suppressed, and that question comes before any argument about the level of the offense.
4. We Take the Field Sobriety Tests Apart
These tests have a standardized protocol that is not always followed, and the scoring is more subjective than a report makes it look. We compare what the protocol requires against what the video actually shows.
5. We Read the Enhancement Paragraphs Closely
What the State alleges and what the State can prove are different documents. Enhancement paragraphs are pleaded, and they can be challenged, struck, or negotiated away.
6. We Work the Case Toward a Lower Level
Moving a case down a rung changes everything that follows it, from the punishment range to whether the record can ever be sealed. No lawyer can promise that outcome, but it is what the work is aimed at, and early involvement creates more room to do it.
Learn more about our approach to DWI defense in San Antonio and what to do when you have been arrested for DWI. If the driver was under 21, the rules are different, and our article on underage DWI in Texas covers those.
What to Do If You've Been Arrested for DWI
Find the notice of suspension, write down the date you received it, and count 15 days
Tell your attorney about every prior intoxication case, anywhere, including any you took deferred adjudication on
Don't assume an old case is too old to count, because there is no lookback period
Write down what you remember about the stop now: where it happened, how long it lasted, what you were asked to do
Keep every piece of paper from the arrest and the release, including bond conditions
Ask your attorney before deciding what to do about a specimen request, rather than deciding on the roadside. Our article on refusing a breath, blood, or field sobriety test explains the trade off, including the longer suspension a refusal carries
Don't post about it, and get advice before you explain it to an employer
Don't miss a court setting, for any reason
The second point on that list is the one that changes cases. A prior you forgot about, or one you were told did not count, is the most common reason a charge comes back a level higher than expected.
“An arrest is not a conviction. The State still has to prove its case.”
The Level Decides What Comes After
The offense level is not only about the sentence. It decides whether deferred adjudication is on the table, whether the record can ever be sealed, what happens to a commercial or professional license, and what a background check will show years from now.
That is why the ladder is worth arguing about even in a case where the evidence of intoxication is strong. A misdemeanor and a felony are different futures, and so are a sealed record and a permanent one.
Final Thoughts
Everyone makes mistakes. What a DWI arrest turns into depends a great deal on what gets done about it early, and on whether anyone checks the assumptions the case is built on.
We take these cases seriously because of what sits behind them: a job, a license, a family, a record someone will read years from now. You are not a file number here.
If you have been arrested for DWI in San Antonio or anywhere in Texas, we're that call. Call us at (210) 224-5010 for a free consultation.
Frequently Asked Questions
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A first DWI is a Class B misdemeanor, punishable by up to 180 days in jail and a fine up to $2,000, with a minimum of 72 hours of confinement. The minimum rises to six days if an open container was in the driver's immediate possession. If an analysis showed an alcohol concentration of 0.15 or more, the offense is a Class A misdemeanor instead, carrying up to one year and a fine up to $4,000.
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No. A second DWI is a Class A misdemeanor, punishable by up to one year in jail and a fine up to $4,000, with a minimum of 30 days of confinement. It becomes a felony at the third offense.
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A DWI is a felony when the person has two prior convictions for an intoxication offense, which makes it a third-degree felony punishable by two to ten years in prison. A DWI is also a felony without any prior if a passenger younger than 15 was in the vehicle, or, for offenses on or after September 1, 2025, if the driving happened in a school crossing zone during the reduced speed limit. Both of those are state jail felonies.
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No. A fourth DWI is still a third-degree felony, the same as a third. The DWI statute has no tier above the third offense. A two to twenty year range can apply to a DWI case, but it comes from the repeat felony offender rule in Penal Code 12.42, which applies when the person already has a separate final felony conviction, and it has nothing to do with the number of DWIs.
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Yes. Texas repealed its lookback period in 2005, so there is no time limit on how old a prior conviction can be. A conviction from decades ago counts the same as a recent one, and qualifying convictions from other states count as well.
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Yes. The statute treats deferred adjudication community supervision on an earlier intoxication offense as a conviction when enhancing a later one. This surprises people regularly, and it is a common reason a case is charged a level higher than expected.
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Driving while intoxicated with a passenger younger than 15 is its own offense and a state jail felony, punishable by 180 days to two years and a fine up to $10,000. It does not require any prior conviction, so it can be a felony charge on a first arrest.
