Texas DWI Laws | Charges, Penalties & the ALR Process

Texas DWI Law | The Short Answer

Under Texas Penal Code §49.04, a person commits Driving While Intoxicated by operating a motor vehicle in a public place while intoxicated. Texas defines intoxication two ways: an alcohol concentration of 0.08 or higher (the per se standard), or not having the normal use of mental or physical faculties by reason of alcohol, a controlled substance, a drug, a dangerous drug, or a combination. A standard first offense is a Class B misdemeanor. Deferred adjudication may be available for some qualifying DWI offenses, but statutory exclusions apply. The ALR license suspension process runs separately; Texas DPS generally requires an ALR hearing request within 15 days after the applicable suspension notice is served or received.

Two Definitions of Intoxication Under Texas Law

Definition 1: Per Se (BAC). A person is intoxicated if their alcohol concentration was 0.08 or higher. The prosecution typically relies on a breath test (Intoxilyzer 9000) or a blood sample analyzed by a crime laboratory. The defense can examine whether the instrument was properly maintained and calibrated, whether the blood evidence chain of custody was intact, and how the result relates to the time of driving, since testing often occurs later.

Definition 2: Impairment (Loss of Normal Use). A person is intoxicated if they did not have the normal use of their mental or physical faculties by reason of alcohol, a controlled substance, a drug, or a combination. The prosecution typically relies on the arresting officer’s observations and standardized field sobriety test results. The defense can examine whether the SFSTs were administered consistently with NHTSA standards, the officer’s training, and whether other factors may explain the observations.

The prosecution only needs to prove one of these two definitions. Both can be examined in an Austin DWI case.

Texas DWI Charge Levels & Penalties

The charge level depends on prior DWI history, the BAC allegation, and the specific facts of the arrest. Each level carries different penalties, different prosecuting offices in Travis County, and different long-term consequences.

Texas repealed the Driver Responsibility Program, including DPS DWI surcharges, effective September 1, 2019. A prior qualifying DWI conviction can affect the charge level or punishment range in a future intoxication case, and Texas does not apply a lookback period for that purpose. An ignition interlock device is generally required for a BAC of 0.15 or higher and for repeat offenses.

When Deferred Adjudication May Be Available for DWI

Texas Code of Criminal Procedure Article 42A.102 permits deferred adjudication for some DWI offenses while excluding specified cases. A defendant charged under Penal Code §49.04 or §49.06 may be ineligible when, among other exclusions, the person held a commercial driver’s license or commercial learner’s permit, the alleged alcohol concentration was 0.15 or higher, or punishment is enhanced under §49.09. Offenses under §49.045, §49.07, and §49.08 are excluded. Whether deferred adjudication is offered in a particular case also depends on the prosecutor and the court.

DWI cases may resolve through dismissal, acquittal, reduction, deferred adjudication where legally available, or other case-specific dispositions. Some qualifying DWI dispositions may be eligible for an order of nondisclosure, which limits public access to the record. Eligibility depends on the offense level, BAC, prior history, disposition, accident circumstances, waiting period, and other statutory requirements. A DWI conviction generally cannot be expunged. The defense should evaluate the evidence, record consequences, and all legally available resolutions before the case is resolved.

The 15-Day ALR Hearing Request | A Notice-Based Deadline

A DWI arrest in Texas can start two separate legal proceedings. The criminal case moves through the courts. The Administrative License Revocation (ALR) proceeding runs under Texas Transportation Code Chapter 524 on its own timeline.

Texas DPS generally requires an ALR hearing request within 15 days after the applicable suspension notice is served or received. The DIC-25 or other DPS notice should be reviewed to confirm the deadline. In a breath-test refusal or failure case, the officer often serves the notice at arrest. In a blood-test case, the notice may arrive later, after the lab result. If no timely request is made, the suspension generally takes effect 40 days after the notice is served. General suspension periods include:

• First qualifying test failure: 90-day suspension
• First refusal to test: 180-day suspension
• Subsequent qualifying test failure: 1-year suspension
• Subsequent refusal: 2-year suspension

When representation includes the ALR proceeding, The Hull Firm acts promptly to request the hearing before the applicable deadline. Beyond contesting the suspension, the ALR hearing may provide an opportunity to question the arresting officer under oath, subject to the hearing’s procedural rules. That testimony can sometimes be relevant in the criminal case.

DPS Surcharges | Repealed in 2019

Texas repealed the Driver Responsibility Program effective September 1, 2019, so DPS DWI surcharges no longer apply. DWI cases can still involve fines, court costs, driver’s license consequences, insurance costs, ignition-interlock costs, education or treatment requirements, and other expenses.

DWI vs. DUI in Texas | The Legal Difference

DUI under Alcoholic Beverage Code §106.041 applies to drivers under 21 and does not require proof of a 0.08 BAC; any detectable amount of alcohol is enough. A first minor DUI is generally a Class C misdemeanor (fine only). A driver under 21 with a BAC of 0.08 or higher, or who is impaired, can face a DWI charge instead. DWI is more serious: generally at least a Class B misdemeanor, with jail exposure, record consequences, and possible enhancement of a future intoxication charge.

Texas DWI FAQ