When someone catches their third DWI, it will generally be prosecuted as a third-degree felony. However, this isn’t always true. There are ways in which a third DWI will not be a felony, depending on the circumstances. It will be a felony if you have had two prior convictions, and if the State can prove both prior convictions. It will also be a felony DWI if a person has one prior conviction for intoxication manslaughter (or for an offense with substantially similar elements in a different state). There are other kinds of felony DWI, such as when there is a child under 15 in the car with you, or when someone is injured or killed. This page discusses only particularities of a third DWI felony repetition charge.
How is a DWI Charge Enhanced?
The essential component of a third DWI felony repetition is the enhancement of a misdemeanor 49.04 charge to a third-degree felony using two prior DWI convictions. The law on enhancement comes from Penal Code Section 49.09.[i] The State must prove the prior convictions. Depending on how old the priors are, proving them could be easy if they occurred in the same County, or even the same State. Although, proving up the convictions can sometimes be troubling for prosecutors if the prior convictions are from a different state. Not too long ago, the law in Texas barred enhancements using a prior conviction that is more than ten years old. In 2005, the Texas Legislature changed this law and there is no longer a remoteness bar. Prior convictions that are more than a decade old can now be used to enhance a 49.04 DWI to a felony DWI.
What if a Prior DWI Was Not a Conviction?
Here is something very important: If this is a person's third DWI arrest, but one of the prior DWI charges did not result in a conviction, it cannot be enhanced to a felony. There are different ways a conviction can be avoided—a DWI can get dismissed, result in a ‘Not Guilty’ verdict at trial, get reduced to another charge like obstruction of a highway. Defending a misdemeanor instead of a felony can profoundly influence the direction of your defense.
What is the Law?
Third DWI felony repetition has the same elements of a standard DWI, Texas Penal Code 49.04, which has four distinct elements. At a jury trial, all four of these elements must be proven beyond a reasonable doubt. The only added element in a felony DWI repetition is the enhancement paragraph in the indictment, which states that the person has previously been convicted of an offense relating to the operation of a motor vehicle under Penal Code 49.04. To understand felony repetition, it is helpful to look at the elements of DWI:
A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place[ii]
There are only four elements in a DWI case. However, there is a tremendous amount of work and analysis that goes into a DWI case on the defense side. If the case goes to trial, regardless of whether it is felony repetition third DWI or misdemeanor, there is a great deal of preparation and investigation. The defense will be staking its case on the attack of at least one of these four elements:
- A Motor Vehicle
- In Public
- While Intoxicated
By far the most challenged and contested territory in a DWI case is intoxication. This should not be surprising since the state of intoxication is the clinching feature of any DWI, and the other three elements—operating a motor vehicle in public—are daily occurrences for almost all of us. Although, sometimes intoxication is not the battle. Sometimes the entire DWI case can hinge on whether someone was operating or not. These cases arise generally when police officers encounter someone in a parked car, but there is no evidence, or uncompelling evidence, of actual driving. Operating is a more encompassing concept than driving. These cases will happen when the weather is cold and someone starts their car to use the heater, but may have no intention of driving. How does the state prove intoxication? Section 49.01 of the Texas Penal Code lists three ways:
Not having the use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
Having an alcohol concentration of 0.08 or more.[iii]
Breath and Blood Tests
In almost every single DWI case, there is either a blood or breath test. In this past, if a person refused a breath test, there would not be a test. This is not the case anymore. If you refuse to take a breath test, law enforcement will obtain a warrant to draw your blood almost every time. If a blood or a breath test is not present, it is very surprising, although it still does happen for a variety of reasons. The ways in which a criminal defense lawyer must attack a breath or a blood test are lengthy topics that deserve pages of their own. However, the test in a third DWI repetition will need to be thoroughly analyzed and attacked. The criminal defense lawyer must focus intently on compromising the test in front of the jury. This is crucial. Jurors will believe that number if this does not happen, and if the number is above 0.08, the jury will find the client guilty. Texas is an “at the time of driving state.[iv]” It is crucial that the defense attorney make this clear to the jury that alcohol concentration in the bloodstream will rise or fall depending on the circumstances, and that it is the sworn duty of the jury to return with a guilty verdict only if they believe beyond a reasonable doubt that the person was intoxicated at the time of driving.
Mental and Physical Faculties
The other two ways for the State to prove up a DWI are the loss of physical faculties or loss of mental faculties. Prosecutors will generally try to argue the loss of both. Mental faculties and physical faculties will be argued from the surrounding circumstances of the DWI arrest. Police officers across Texas and the United States are trained to investigate DWI according to the National Highway and Safety Traffic Administration guidelines. Police will rely on their NHTSA training to gather evidence on loss of physical and mental. There are three phases to a DWI arrest. The three phases are: vehicle in motion, personal contact, and pre-arrest screening.
Vehicle in Motion
The first phase, vehicle in motion, deals with the actual driving factors that led to the stop, and eventually to the driver’s arrest. Police are trained to look for 24 unique cues of intoxication when observing drivers on the roadway. Law enforcement are looking for things like weaving, drifting, straddling a lane, driving without lights at night, driving the wrong way on the road, and other factors. Many DWI arrests result from speeding, which is not a sign of intoxication. This becomes very important when prosecutors are trying to prove up loss of mental or physical faculties.
In the second phase, personal contact, police are looking for things like slurred speech, bloodshot eyes, and the odor of alcohol. In almost every single police report I read, I come across these three things. One would think they are preprinted on the police reports. Police are also looking at how a person produces their license and registration, how someone exits their vehicle, and for the presence of open containers in the car. At this stage, the statements a person makes are very important. If police spell alcohol, a driver is likely getting arrested regardless. However, drivers stand a much better chance to prevail at trial if they don’t make incriminating statements at this point.
In the third phase of DWI investigation, law enforcement will run a driver through the standard battery of standardized field sobriety tests. The three standardized FSTs are the horizontal gaze nystagmus test, the walk and turn, and the one leg stand. Law enforcement has a number of clues they are looking for in each of these tests. These tests are designed to identify intoxicated people, but they make many assumptions about the person taking the test. One key assumption is that everyone is physically and emotionally capable of performing the tests, and performing the test under roadside conditions.
What are the Penalties?
If prosecutors can prove up the prior convictions that are necessary elements of the offense, a third DWI repetition will be charged as a third-degree felony. A third-degree felony carries a potential range of punishment between 2 and 10 years in the Texas Department of Corrections and up to a $10,000 fine. There is also a driver’s license suspension that can range from 180 days to 2 years. That is simply the range of punishment for a conviction. What happens in a specific case depends on many factors that cannot be known without a working knowledge of the specific case. Each case is different from the next. In every case, there may be factors that can potentially increase or decrease the punishment. These are known as aggravating and mitigating circumstances. An aggravating circumstance, for instance, could be an accident, or it could be a belligerent attitude toward police captured on video.
Is Probation Available?
Sometimes in a third DWI case, it is the prudent decision to plea bargain a deal. Every case is different and must be addressed and defended on its own merits. If your third DWI gets charged as a misdemeanor for whatever reason, probation is certainly available. If your case does not end up going to trial because of a guilty plea and you get a felony conviction, probation is a possibility. Probation, which is also known as community supervision, is a result that will be arranged among the prosecutor, the defense lawyer, and, ultimately, the judge. Probation for a felony third DWI must be between 2 and 10 years. When a person gets put on felony probation, there will be several conditions that must be met, such as:
- Report to probation every month
- Pay all fines, court costs, and probation fees
- Maintain interlock in your vehicle
- Complete DWI Education Class
- Take a drug and alcohol evaluation
- Take random urine analysis
- Do not drink alcohol or do drugs
- Do not pick up any new charges
Felony DWI probation can be very tough. For felony probation, you also must serve jail time as a condition of probation. The minimum jail time as a condition of felony probation is 10 days. However, the judge has the discretion to make a person serve up to 180 days. The 10 days is statutory, and it is unavoidable. However, serving the time on weekends is certainly a possibility.
What is FAIP?
In Tarrant County, there is a version of probation called the Felony Alcohol Intervention Program, or FAIP. A person must be admitted to the FAIP program. Generally, the person’s attorney will receive a letter about FAIP instructing them to apply within 45 days of receipt of the letter. The FAIP program is different from regular probation in several respects. FAIP is in some ways better than standard felony DWI probation. The FAIP term is 4 years, probated for 7 years. This means that a person will have probationary responsibilities for 4 years, and if they screw it up and get revoked for whatever reason, they will be looking at 7 years in prison. FAIP only requires 10 days in jail as a condition. However, it is very intensive for the first 6 months, and there is a hard driver’s license suspension. If you are admitted into the FAIP program, you cannot drive at all. You must have someone drive you around to attend probation and court functions for the first 6 months. After the first year, the intensity of FAIP commitment subsides, and resembles something more like regular felony DWI probation.
[i] Texas Penal Code Section 49.09. Enhanced Penalty Offenses
- Except as provided by subsection (b), an offense under Section 49.04, 49.05, 49.06, 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
- An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
- one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
- two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
[ii] Texas Penal Code Sec. 49.04(a)
[iii] Texas Penal Code Sec. 49.01(2)
[iv] Texas Penal Code 49.04.