Deferred Adjudication

Short answer: In Texas, a first DWI is normally a Class B misdemeanor, but it becomes a Class A misdemeanor if an analysis of your blood, breath, or urine showed an alcohol concentration of 0.15 or more at the time the test was performed. That raises the maximum punishment to one year in jail and a $4,000 fine, requires an ignition interlock if you are placed on probation, rules out deferred adjudication, and, with limited exceptions, doubles the state DWI fine to $6,000. Because the 0.15 level is an element of the offense, the State must prove it beyond a reasonable doubt, and the reliability of the test result is often the central issue in the case.

Many people arrested for DWI in Dallas-Fort Worth are surprised to see "Class A" on their paperwork. In most cases, the reason is a breath or blood test result of 0.15 or higher. This charge is sometimes called a "high BAC" or "aggravated" DWI, and it carries consequences that go well beyond a standard first offense.

At Howard Lotspeich Alexander & Williams, PLLC (HLAW), our Fort Worth DWI attorneys defend DWI charges in Tarrant, Dallas, Denton, Collin, Johnson, and Parker counties. This guide explains how Texas law treats a 0.15 BAC, what changes compared with a standard DWI, and the defense issues that come up most often.

Key Takeaways

• 0.15 or more makes a first DWI a Class A misdemeanor. Texas Penal Code §49.04(d) applies when "an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed" (Tex. Penal Code §49.04).
• The punishment range increases. A Class A misdemeanor carries up to one year in jail and a fine of up to $4,000, compared with up to 180 days and $2,000 for a Class B (Tex. Penal Code ch. 12).
• Deferred adjudication is not available. Texas allows deferred adjudication for many first DWIs, but not when "the defendant's alcohol concentration... was 0.15 or more" (Tex. Code Crim. Proc. art. 42A.102).
• An ignition interlock is mandatory on probation. If you are placed on community supervision after a 0.15 finding, the court "shall require" an ignition interlock device (Tex. Code Crim. Proc. art. 42A.408).
• The state DWI fine doubles. The additional state fine after a conviction is generally $3,000 for a first conviction within 36 months, but $6,000 if the test showed 0.15 or more (Tex. Transp. Code §709.001).
• Nondisclosure is off the table. The DWI nondisclosure statutes for people convicted of DWI exclude offenses punishable under §49.04(d) (Tex. Gov't Code §§411.0731, 411.0736).
• The 0.15 level is an element the State must prove. Courts have held it is part of a separate offense, not just a punishment enhancement, and must be proved at the guilt stage of trial (Navarro v. State, Tex. App. Houston 2015).

What Is a 0.15 BAC DWI in Texas?

Texas defines "intoxicated" two ways: not having the normal use of mental or physical faculties because of alcohol or another substance, or "having an alcohol concentration of 0.08 or more" (Tex. Penal Code §49.01). A first DWI is a Class B misdemeanor with a minimum term of confinement of 72 hours under §49.04(b).

Section 49.04(d) creates a higher level. If the State shows that a test "showed an alcohol concentration level of 0.15 or more at the time the analysis was performed," the offense is a Class A misdemeanor.

Two features of that language matter:

1. It measures the test, not the driving. The statute looks at the result "at the time the analysis was performed." That differs from the 0.08 per se definition, which concerns alcohol concentration at the time of driving.
2. It requires an actual analysis. The 0.15 level must be shown by a chemical analysis of blood, breath, or urine. Observations of impairment alone cannot establish a Class A charge under §49.04(d).

If you were arrested with a result between 0.08 and 0.15, see our guide on being arrested for DWI under 0.08 BAC in Texas for related issues.

How Is a 0.15 DWI Different From a Standard First DWI?

Issue	Standard first DWI (Class B)	DWI with 0.15 or more (Class A)
Jail range	72 hours minimum, up to 180 days	Up to 1 year
Maximum fine	$2,000	$4,000
Deferred adjudication	Available in many cases	Not available
Ignition interlock on probation	Discretionary for a first offense	Mandatory
State DWI fine after conviction	Generally $3,000 (first within 36 months)	Generally $6,000
DWI nondisclosure after conviction	Possible after waiting period	Not available under §§411.0731 and 411.0736

Sources: Tex. Penal Code §49.04; Tex. Penal Code ch. 12; Tex. Code Crim. Proc. ch. 42A; Tex. Transp. Code §709.001; Tex. Gov't Code ch. 411.

What Are the Penalties for a 0.15 DWI in Texas?

Jail and fines

As a Class A misdemeanor, a first DWI with 0.15 or more is punishable by a fine of up to $4,000, confinement in jail for up to one year, or both (Tex. Penal Code §12.21). Many first-time cases are resolved with community supervision (probation), but the conditions are often stricter.

Mandatory ignition interlock

Under article 42A.408(c), when "an analysis of a specimen of the defendant's blood, breath, or urine showed an alcohol concentration level of 0.15 or more," the court must require an ignition interlock device on the vehicle you own or most regularly drive as a condition of community supervision (Tex. Code Crim. Proc. art. 42A.408). Our article on the ignition interlock breath testing device explains how these devices work.

The $6,000 state fine

Separate from the fine in the judgment, Transportation Code §709.001 imposes an additional fine on people "finally convicted" of a DWI-related offense. The amount is $6,000 "if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more" (Tex. Transp. Code §709.001). The statute contains exceptions, including for indigent defendants. For a broader look at expenses, see our guide to the real costs of a DWI in Texas.

No deferred adjudication

Texas allows deferred adjudication for many first DWI cases, which can avoid a final conviction. But article 42A.102(b)(1)(B) excludes cases in which, at the time of the offense, the defendant held a commercial driver's license or the defendant's "alcohol concentration... was 0.15 or more" (Tex. Code Crim. Proc. art. 42A.102). Our guide to DWI deferred adjudication in Texas explains how deferred works when it is available.

Record sealing limits

Texas allows nondisclosure (sealing) for some first-time DWI convictions after a waiting period. Sections 411.0731 and 411.0736 of the Government Code, however, apply only to a DWI "other than an offense punishable under Subsection (d)" of §49.04 (Tex. Gov't Code ch. 411). That makes the difference between a Class A and a Class B conviction especially important for your long-term record. Learn more in our article on DWI record sealing in Texas.

Driver's license consequences

A DWI arrest with a breath or blood test result of 0.08 or more also usually triggers an administrative license suspension through DPS, which is separate from the criminal case. You generally have only 15 days after notice to request a hearing; see our guide to the ALR hearing deadline.

Does the State Have to Prove the 0.15 Result at Trial?

Yes. In Navarro v. State, the Houston Fourteenth Court of Appeals held that a person's alcohol concentration level under §49.04(d) "is not a basis for enhancement" but "is instead an element of a separate offense," reasoning that it targets operating a motor vehicle with an especially high concentration of alcohol in the body (Navarro v. State). The Corpus Christi Court of Appeals agreed in Castellanos v. State, holding that subsection (d) "describes an element of a class A misdemeanor DWI, which the State has the burden to prove at the guilt/innocence stage" (Castellanos v. State).

Practically, this means:

• The charging document must allege the 0.15 element for a Class A charge.
• The jury decides, beyond a reasonable doubt, whether the test showed 0.15 or more.
• If the jury is not convinced on the 0.15 element, the case may result in a Class B conviction on the lesser offense, or an acquittal, depending on the evidence.

What Defenses Apply to a 0.15 DWI Charge?

Every case depends on its facts, but these issues often matter.

Whether the stop and arrest were lawful

If the officer lacked reasonable suspicion for the stop or probable cause for the arrest, evidence including the test result may be suppressed. Our article on refusing field sobriety tests discusses how roadside evidence is used.

Whether the blood draw was lawful

Blood is often drawn under a search warrant, especially on "no-refusal" weekends. Problems with the warrant affidavit or a warrantless draw can lead to suppression. The Fort Worth Court of Appeals has addressed these issues; see our discussion of a warrantless DWI blood draw held unconstitutional by a Fort Worth court.

Whether the test measured "blood" correctly

In Navarro, the court also held that "blood" in the statute means whole blood. A hospital result measured only from plasma or serum was not enough by itself to prove the 0.15 element (TDCAA case summary of Navarro). This can matter when the only test came from a hospital after a crash.

Whether the result is reliable

Breath tests depend on proper instrument maintenance, operator certification, and a required observation period. Blood tests depend on collection, storage, chain of custody, and laboratory procedures. A result close to 0.15 also raises questions about the measurement uncertainty of the test.

Rising blood alcohol and retrograde extrapolation

Because §49.04(d) measures the result "at the time the analysis was performed," the State does not need to extrapolate back to the time of driving to prove the 0.15 element itself. But a result taken long after driving can still matter to whether you were intoxicated while driving. The Court of Criminal Appeals in Mata v. State held that retrograde extrapolation "can be reliable in a given case," but that courts should consider the time between driving and the test, the number of tests, and what the expert knew about the person (Mata v. State, Tex. Crim. App. 2001).

What Should You Do After a 0.15 DWI Arrest in DFW?

1. Request the ALR hearing within 15 days of receiving the notice of suspension.
2. Write down a timeline while it is fresh: when you last ate, what you drank and when, when you were stopped, and when the test happened.
3. Keep all paperwork, including the bond conditions, which may already require an interlock device.
4. Avoid discussing the case with anyone other than your lawyer, including on social media.
5. Ask a lawyer to request the test records, including breath instrument maintenance logs or blood lab data, and video from the stop and the jail.
6. Do not assume a Class A charge cannot change. Whether the State can prove the 0.15 element is often a central question.

Frequently Asked Questions

Is a 0.15 DWI a felony in Texas?

No. A first DWI with a test result of 0.15 or more is a Class A misdemeanor. DWI becomes a felony in other situations, such as a third offense, a child passenger under 15, or causing serious bodily injury. See our guide on third DWI felony charges in Texas.

Can I get deferred adjudication for a 0.15 DWI?

Generally no. Article 42A.102 excludes DWI cases in which the defendant's alcohol concentration was 0.15 or more at the time of the offense, as well as cases involving a commercial driver's license or learner's permit holder.

Will I have to install an ignition interlock?

If you are placed on community supervision after a 0.15 finding, Texas law requires the court to order an ignition interlock device. Courts also frequently order interlocks as a bond condition while the case is pending.

Can a Class A DWI be reduced to a Class B?

It can happen. Whether a reduction is possible depends on the evidence, including the reliability of the test result, and the policies of the prosecutor's office. A reduction can affect deferred adjudication, the state fine, and nondisclosure eligibility.

Does refusing a breath test avoid a 0.15 charge?

Refusing a breath test means there may be no immediate result, but officers in DFW frequently seek a search warrant for blood, and refusal carries its own license suspension. If a blood test shows 0.15 or more, the Class A charge can still apply. See our article on no-refusal DWI in Texas.

Can a 0.15 DWI conviction be sealed?

Not under the DWI nondisclosure statutes that apply to convictions, which exclude offenses punishable under §49.04(d). This is one reason the Class A element is worth challenging carefully.

Talk to a Fort Worth DWI Lawyer

A 0.15 allegation changes almost every part of a DWI case, from probation conditions to fines and record sealing. Careful review of the test, the stop, and the timeline can make a meaningful difference.

Call HLAW at (817) 993-9249 or contact us online for a free consultation about your Dallas-Fort Worth DWI case.

This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Laws change, and every case depends on its specific facts.

Short answer: In Texas, a third DWI is usually a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000. The State must allege and prove two prior intoxication-related driving convictions, and Texas has no "look-back" limit, so a DWI from decades ago can still count. A felony DWI does not automatically mean prison. A judge can grant community supervision (probation) when the sentence is 10 years or less, but it comes with mandatory jail time, an ignition interlock, and a longer license suspension.

A first or second DWI in Dallas-Fort Worth is a misdemeanor handled in a county criminal court. A third DWI changes everything. The case moves to a felony district court, the potential sentence jumps from months in county jail to years in prison, and a conviction leaves you with a permanent felony record that can follow you into employment, housing, professional licensing, and firearm rights.

At Howard Lotspeich Alexander & Williams, PLLC (HLAW), our Fort Worth defense lawyers represent people charged with DWI and felony DWI in Tarrant, Dallas, Denton, Collin, Johnson, and Parker counties. This guide explains how Texas turns a DWI into a felony, what penalties apply, and where the defense opportunities usually are.

Key Takeaways

• Two prior DWI convictions make a new DWI a third-degree felony. Under Texas Penal Code §49.09(b), a DWI is a felony of the third degree if the person has previously been convicted "two times of any other offense relating to the operating of a motor vehicle while intoxicated." One prior intoxication manslaughter conviction is enough on its own.
• The punishment range is 2 to 10 years in prison plus up to a $10,000 fine (Penal Code §12.34).
• Old convictions still count. The subsections that once limited which prior DWIs could be used were repealed in 2005 (§49.09(e) and (f)), so Texas has no 10-year look-back period for felony DWI.
• Deferred adjudication for a DWI now counts as a conviction for enhancement purposes under §49.09(g).
• Probation is possible but strict. A judge granting community supervision for a felony DWI must order at least 10 days in county jail (Code of Criminal Procedure art. 42A.401) and must require an ignition interlock device (art. 42A.408).
• The prior convictions are a key battleground. Texas courts treat the two priors as jurisdictional elements the State must prove, and a defendant may stipulate to them to keep extra prior convictions away from the jury (Tamez v. State).

When Does a DWI Become a Felony in Texas?

A standard first DWI under Penal Code §49.04 is a Class B misdemeanor with a minimum of 72 hours in jail. It becomes a Class A misdemeanor if a breath or blood test shows an alcohol concentration of 0.15 or more. A second DWI is a Class A misdemeanor with a minimum of 30 days in jail (§49.09(a)).

Several paths lead to a felony DWI charge in Texas:

Situation	Offense level	Statute
DWI with two prior intoxication-related driving convictions	Third-degree felony (2 to 10 years)	Penal Code §49.09(b)(2)
DWI with one prior intoxication manslaughter conviction	Third-degree felony (2 to 10 years)	Penal Code §49.09(b)(1)
DWI with a passenger younger than 15	State jail felony	Penal Code §49.045
DWI in an active school crossing zone (effective September 1, 2025)	State jail felony	Penal Code §49.04(e)
DWI causing serious bodily injury (intoxication assault)	Third-degree felony	Penal Code §49.07
DWI causing death (intoxication manslaughter)	Second-degree felony	Penal Code §49.08

This guide focuses on the most common felony DWI charge in DFW courts: the "third DWI" under §49.09(b)(2). If a child was in the car, see our guide on DWI with a child passenger in Texas.

What Counts as a "Prior" DWI Conviction?

The statute casts a wide net. Under §49.09(c), an "offense relating to the operating of a motor vehicle while intoxicated" includes:

• A Texas DWI under §49.04 or DWI with a child passenger under §49.045
• Intoxication assault or intoxication manslaughter involving a motor vehicle
• Older Texas DWI offenses under statutes that existed before 1994
• A DWI conviction from another state, if that state's law prohibits operating a motor vehicle while intoxicated

Three rules make prior convictions easier for the State to use than many people expect.

No look-back limit. Before 2005, Texas law restricted the use of some older priors. Those subsections, §49.09(e) and (f), were repealed effective September 1, 2005. Today a conviction from 20 or 30 years ago can be one of the two priors.

Probated sentences count. Under §49.09(d), a DWI conviction on or after September 1, 1994 "is a final conviction, whether the sentence for the conviction is imposed or probated."

Deferred adjudication counts. Section 49.09(g) states that a person "is considered to have been convicted" of DWI if the person was placed on deferred adjudication for it. Texas began allowing deferred adjudication for many first-time DWI cases in 2019, and the tradeoff is that it can still be used later to raise a future charge. Our article on DWI deferred adjudication in Texas covers how that option works.

There is one limit that helps defendants. Section 49.09(g) says a conviction can be used to enhance under §49.09 "or enhancement under Subchapter D, Chapter 12, but not under both." In other words, the same prior DWI generally cannot be used both to make the case a felony and to push the punishment range even higher.

What Is the Punishment for a Third DWI in Texas?

A third-degree felony carries "any term of not more than 10 years or less than 2 years" in prison, plus a possible fine up to $10,000 (Penal Code §12.34).

The range can climb further if the State also proves unrelated prior felony convictions. Under Penal Code §12.42(a), a third-degree felony is punished as a second-degree felony if the defendant has a prior felony conviction (other than certain state jail felonies). Under §12.42(d), two properly sequenced prior felony convictions can raise the range to 25 to 99 years or life. These "habitual" enhancements are technical, and the sequence and finality of each prior conviction matter. We discuss one aspect in our post on pleading "true" to a felony enhancement.

Other consequences that commonly follow a felony DWI conviction include:

• Driver's license suspension of 180 days to 2 years for a person punished under §49.09(a) or (b), or 1 to 2 years if the new offense came within five years of the last one (Transp. Code §521.344)
• A state traffic fine under Transp. Code §709.001 of $3,000 for a first conviction within 36 months, $4,500 for a second or subsequent conviction within 36 months, or $6,000 if the test showed 0.15 or more, which the court must waive on a finding of indigency
• Ignition interlock requirements at bond, during probation, and potentially as a condition of an occupational license
• A permanent felony record, which carries collateral consequences such as restrictions on firearm possession

For a broader view of the financial impact, see our breakdown of what a DWI really costs in Texas.

Can You Get Probation for a Felony DWI?

Yes, in many cases. Under Code of Criminal Procedure art. 42A.053, a judge may place a defendant on community supervision after conviction, but a defendant is not eligible for judge-ordered supervision if sentenced to a term of imprisonment that exceeds 10 years. For a felony, the minimum period of supervision equals the minimum prison term for the offense, which is two years for a third-degree felony, and the maximum is generally 10 years.

Felony DWI probation carries mandatory conditions:

1. Jail time as a condition of probation. A judge granting community supervision to a defendant punished under §49.09(b) must require "not less than 10 days of confinement in county jail" (art. 42A.401(a)(3)).
2. Ignition interlock. The court "shall require" an interlock on the vehicle the defendant owns or drives most when the defendant is punished under §49.09(a) or (b) (art. 42A.408(c)).
3. Standard supervision conditions, which often include alcohol evaluation and treatment, community service, reporting, and fees.

Deferred adjudication is not available for a DWI charge "for which punishment may be increased under Section 49.09" (art. 42A.102(b)(1)(C)). That means a felony DWI resolved by probation is usually a conviction, not a deferral.

Tarrant County's Felony Alcohol Intervention Program

Tarrant County has a specialty court for repeat DWI offenders. The Felony Alcohol Intervention Program (FAIP) is a post-adjudication program for eligible high-risk repeat offenders charged with felony DWI, with screening by the program team and the District Attorney's office. It is intensive and is not available in every case, but for the right client it can be an alternative to a prison sentence.

What Happens After a Felony DWI Arrest in DFW?

The early stages of a felony DWI move on two separate tracks: the criminal case and the driver's license case.

Bond and ignition interlock. For a defendant charged with a subsequent DWI, a magistrate "shall require" as a bond condition that an ignition interlock be installed on the defendant's vehicle within 30 days of release, unless the magistrate finds that it "would not be in the best interest of justice" (Code of Criminal Procedure art. 17.441). Violating bond conditions can result in arrest and a higher bond.

The ALR license suspension. Separately from the criminal case, DPS can seek an administrative license suspension after a breath or blood test failure or a refusal. You generally have only 15 days from the notice to request a hearing. Our guide on the 15-day ALR hearing deadline explains the process, and our article on Texas DWI license suspensions and occupational licenses covers how to keep driving legally.

Indictment and district court. A felony DWI must be presented to a grand jury. In Tarrant County, felony cases are heard in the Criminal District Courts. Once an indictment alleging the two prior convictions is presented, the district court has jurisdiction over the case.

How Do Lawyers Defend a Third DWI Charge?

A third DWI is two cases in one. The State must prove the new DWI happened, and it must prove the two prior convictions. Both parts deserve close attention.

Challenging the new arrest

Every defense available in a first DWI is still available in a third. That includes whether the officer had reasonable suspicion for the stop, whether there was probable cause to arrest, how field sobriety tests were administered, and whether a breath or blood test was properly obtained, handled, and analyzed. A prior record does not lower the State's burden to prove intoxication beyond a reasonable doubt.

Scrutinizing the prior convictions

Because the priors are elements of the offense, they must be proven. The Texas Court of Criminal Appeals has held that "the prior convictions are elements of felony DWI" and that the two priors are jurisdictional (Tamez v. State; Robles v. State). Issues worth investigating include:

• Whether each prior was actually a final conviction and properly documented
• Whether the State can link the defendant to each prior judgment through fingerprints, photographs, or other identifying evidence
• Whether an out-of-state conviction was under a law that truly prohibits operating a motor vehicle while intoxicated
• Whether a prior is really a different offense, such as obstruction or reckless driving, that does not qualify

Using a stipulation strategically

A defendant may offer to stipulate to the two jurisdictional prior convictions. In Tamez, the Court of Criminal Appeals held that when a defendant stipulates, the State may read the indictment mentioning only the two jurisdictional priors, but "prior convictions beyond the two jurisdictional elements should not be read or proven" in the State's case-in-chief. As a later opinion summarized, this is "an offer the State cannot refuse" (Martin v. State). A stipulation can keep a jury from hearing about a long record, but it also concedes an element, so it is a decision to make carefully with counsel.

Negotiating the outcome

Depending on the evidence and the client's history, possible outcomes may include a reduction to a misdemeanor, a probated sentence, placement in a specialty program, or a trial. There is no single formula, and results depend on the facts of each case.

Frequently Asked Questions

Is a third DWI always a felony in Texas?

Generally, yes, if the State can prove two prior intoxication-related driving convictions. A new DWI is a third-degree felony under Penal Code §49.09(b) when the person has two qualifying priors, or one prior intoxication manslaughter conviction. If the State cannot prove both priors, the case may proceed as a misdemeanor instead.

Does Texas have a 10-year look-back for DWI priors?

Not for the felony enhancement. The look-back provisions in §49.09(e) and (f) were repealed in 2005. A 10-year window does still appear in some other parts of the law, such as one exception to the ignition interlock rules in art. 42A.408, but it does not keep an old DWI from being used to make a new one a felony.

Will I go to prison for a third DWI?

Not necessarily. The punishment range is 2 to 10 years, and a judge may grant community supervision when the sentence is 10 years or less. Probation for felony DWI requires at least 10 days in county jail and an ignition interlock. Specialty programs like Tarrant County's FAIP may also be an option for eligible defendants.

Does a DWI from another state count toward a Texas felony DWI?

It can. Section 49.09(c)(1)(F) includes "an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated." The details of the out-of-state statute and the conviction records matter, so they should be reviewed closely.

If I got deferred adjudication on an earlier DWI, does it count?

Under §49.09(g), a person placed on deferred adjudication for DWI under art. 42A.102 "is considered to have been convicted" for enhancement purposes. The date and terms of the earlier case should be reviewed with a lawyer.

Can I drive while my felony DWI case is pending?

Often, but with conditions. Bond conditions usually require an ignition interlock for a subsequent DWI charge, and an ALR suspension may also apply. An occupational license may be available in some situations, typically with an interlock requirement.

How long does a felony DWI stay on my record?

Texas's DWI-specific nondisclosure law, Government Code §411.0736, is limited to people convicted under §49.04 who have never previously been convicted of or placed on deferred adjudication for another offense other than a fine-only traffic offense. A person with two prior DWIs does not meet that test, so a felony DWI conviction generally stays on the record. Our article on DWI record sealing in Texas explains who does qualify.

Talk to a Fort Worth Felony DWI Lawyer

A third DWI charge is serious, but it is not a conviction. The State still has to prove the new offense and both prior convictions, and the decisions made in the first weeks, including the ALR hearing request and bond conditions, can shape the rest of the case.

If you or a family member has been charged with felony DWI anywhere in Dallas-Fort Worth, call HLAW at (817) 993-9249 or contact us online for a free consultation. We will review the arrest, the prior convictions, and your options.

This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Laws change, and every case depends on its specific facts.

Short answer: In Texas, driving while intoxicated with a passenger younger than 15 is a state jail felony under Penal Code §49.045, even on a first offense and even if no one is hurt. A conviction carries 180 days to 2 years in a state jail and a fine of up to $10,000. The judge cannot grant deferred adjudication, and a magistrate must generally order an ignition interlock as a bond condition. The arrest can also trigger a separate Child Protective Services (CPS) investigation and affect custody. These cases are defensible, but the stakes are much higher than a typical DWI, so it's important to get a lawyer involved immediately.

Most first-time DWI arrests in Texas are misdemeanors. That changes the moment a child under 15 is in the car. A parent driving home from a restaurant in Fort Worth, a grandparent picking up kids after a family gathering in Arlington, or a coach giving a ride to a team member in Frisco can all face a felony charge.

At Howard Lotspeich Alexander & Williams, PLLC (HLAW), we defend DWI with child passenger cases throughout Tarrant, Dallas, Denton, Collin, Johnson, and Parker counties. This guide explains the law, the penalties, how it differs from a standard DWI, what happens with CPS, and how these cases are defended.

Key Takeaways

• It's a felony from the start. DWI with a child passenger under 15 is a state jail felony under Penal Code §49.045, with no prior conviction required.
• Penalty range. A conviction carries 180 days to 2 years in a state jail and a fine of up to $10,000 under Penal Code §12.35.
• No deferred adjudication. Code of Criminal Procedure art. 42A.102 bars deferred adjudication for this offense.
• Interlock on bond. Under art. 17.441, a magistrate must require an ignition interlock as a bond condition, installed within 30 days, unless it isn't in the best interest of justice.
• Each child can be a separate count. Prosecutors may file one count for each child passenger.
• CPS may get involved. Law enforcement may refer the case to the Texas Department of Family and Protective Services (DFPS), which runs its own civil investigation.
• The license case runs separately. You still face the ALR license suspension process and its 15-day deadline.

What Does Texas Law Say About DWI With a Child Passenger?

Under Texas Penal Code §49.045, a person commits the offense if:

1. The person is intoxicated while operating a motor vehicle in a public place; and
2. The vehicle is occupied by a passenger younger than 15 years of age.

"Intoxicated" has the same meaning as in any Texas DWI case. Under §49.01, it means either not having the normal use of your mental or physical faculties because of alcohol, drugs, or another substance, or having an alcohol concentration of 0.08 or more. So the State can prove a child passenger case with a breath or blood result at or above 0.08, or without one, by relying on driving behavior, field sobriety tests, and the officer's observations. That includes cases involving prescription medication or THC.

The State doesn't have to prove you knew the child's age, that the child was harmed, or that the child was unrestrained. The child's presence in the vehicle is enough.

How Is It Different From a Regular DWI?

Issue	First-offense DWI (§49.04)	DWI with child passenger (§49.045)
Offense level	Class B misdemeanor; Class A if BAC is 0.15 or more	State jail felony
Jail or prison range	72 hours to 180 days in county jail (Class B)	180 days to 2 years in state jail
Maximum fine	$2,000 (Class B)	$10,000
Deferred adjudication	May be available (not if BAC is 0.15+ or CDL holder)	Not available
Ignition interlock on bond	Discretionary for a first offense	Generally mandatory
Felony record	No	Yes, with consequences for firearms, employment, and professional licenses

Since September 1, 2019, Texas judges have been allowed to grant deferred adjudication for many first-time DWIs. Article 42A.102 specifically excludes §49.045, however, along with DWI cases where the driver had a commercial license or a BAC of 0.15 or more.

Can it be enhanced further?

Yes. Under Penal Code §49.09(b), a DWI with child passenger becomes a third-degree felony if the person has two prior intoxication-related driving convictions, or one prior conviction for intoxication manslaughter. A third-degree felony carries 2 to 10 years in prison.

If a child is injured, the charges can become far more serious, such as intoxication assault (§49.07) or, tragically, intoxication manslaughter (§49.08), along with other possible offenses.

What Happens After the Arrest?

Bond and conditions

Because this is a felony, bond amounts are often higher than for a misdemeanor DWI, and the conditions are more restrictive. Under CCP art. 17.441, a magistrate must require that you install an ignition interlock device on the vehicle you own or drive most often, and that you not drive any vehicle without one. You must have it installed at your own expense within 30 days of release. The magistrate can waive this only by finding that the device "would not be in the best interest of justice." Learn more about how ignition interlock devices work.

Other common bond conditions in DFW include no alcohol, alcohol monitoring, and sometimes conditions related to contact with or transportation of children.

Grand jury and felony court

Felony charges must be presented to a grand jury. In Tarrant County, felony DWI cases are handled in the criminal district courts rather than the county criminal courts. The time between arrest and indictment gives your lawyer a chance to investigate, obtain the video, and sometimes present information to prosecutors before charging decisions are final.

The driver's license case

The child passenger charge doesn't change the administrative license process. If you refused or failed a breath or blood test, DPS will seek to suspend your license through the Administrative License Revocation (ALR) program. You generally have 15 days to request a hearing. See our guide: The 15-Day Clock: How to Request and Fight an ALR Hearing.

Will CPS Get Involved?

Often, yes, especially when the driver is the child's parent or caregiver.

Texas law requires that reports to law enforcement alleging abuse or neglect by a person responsible for a child's care be referred immediately to DFPS. Under Family Code §261.001, "neglect" includes an act or failure to act showing blatant disregard for the consequences that results in harm to the child or "creates an immediate danger to the child's physical health or safety." DFPS explains that its investigation is a civil matter focused on the child's welfare and is separate from the criminal case.

What that can mean for a DFW family:

• A CPS investigator may contact you, visit your home, or interview your children, often within days.
• You may be asked to sign a safety plan, which may include not driving the children or supervised contact.
• A CPS finding can be used in a divorce or custody case, and the other parent may seek temporary orders limiting your possession or requiring you not to drink during visits.

Be careful what you say to a CPS investigator. Statements made in the CPS case can be shared with law enforcement and used in the criminal case. Talk to your criminal defense lawyer before any CPS interview, and coordinate with your family law counsel if custody is at issue.

How Are DWI With Child Passenger Cases Defended?

Every case is different, but the defenses usually focus on the same core questions as any DWI, plus the child passenger element.

Challenging the stop and arrest

• Was the stop lawful? The officer needs reasonable suspicion of a traffic violation or crime. Weaving within a lane, for example, isn't always enough. If the stop was unlawful, the evidence may be suppressed.
• Was there probable cause to arrest? Officers often rely on field sobriety tests, which can be affected by fatigue, nerves, medical conditions, footwear, weather, and road surface. They're also hard to perform with a frightened child watching.

Challenging intoxication evidence

• Breath tests: maintenance records, the 15-minute observation period, and operator certification.
• Blood tests: the warrant, the chain of custody, lab procedures, retrograde extrapolation, and whether a "no-refusal" warrant was properly obtained. See no-refusal DWI in Texas.
• Drug and medication cases: the State must prove loss of normal use of faculties. A positive test for a substance alone doesn't prove intoxication.

Challenging the child passenger element

• Was the passenger actually younger than 15? The State must prove the child's age.
• Was the person charged actually operating the vehicle?
• Did the stop happen in a public place?

Negotiating the charge

Depending on the evidence and your history, the defense may negotiate a reduction from §49.045 to a misdemeanor DWI, which can open the door to deferred adjudication or other alternatives. Some defendants may be eligible for specialty or treatment-focused programs. For example, see Tarrant County's misdemeanor DWI court program, though eligibility depends on the final charge. Early action often matters, such as voluntary alcohol evaluations, counseling, and a clean interlock record.

What Are the Long-Term Consequences?

A state jail felony conviction can affect your life well beyond the sentence:

• Firearms: Federal law generally prohibits people with felony convictions from possessing firearms. See DWI and firearms in Texas.
• Employment and licenses: Nurses, teachers, CDL holders, and many licensed professionals face reporting obligations and discipline.
• Record sealing: Texas DWI nondisclosure options are largely limited to misdemeanor DWIs, so a felony conviction generally can't be sealed that way.
• Custody: A conviction can be powerful evidence in a custody dispute.
• Costs: The fines, fees, interlock costs, and insurance increases add up quickly. See the real costs of a DWI in Texas.

What to Do Right Now

1. Don't discuss the facts with police, CPS, or anyone else before talking to a lawyer.
2. Request your ALR hearing within 15 days, or have your attorney do it.
3. Comply with every bond condition, especially the interlock deadline.
4. Write down everything you remember: where you were, what you ate and drank and when, any medical conditions, and where the stop happened.
5. Identify witnesses and receipts, such as restaurant or bar tabs, that show the timeline.
6. Talk to a DWI defense lawyer before your first court date and before any CPS interview.

Frequently Asked Questions

Is DWI with a child passenger a felony on the first offense in Texas?

Yes. Under Penal Code §49.045, it's a state jail felony even if you have no prior record, the child wasn't hurt, and your BAC was just above 0.08.

How old does the child have to be?

The passenger must be younger than 15. A 15- or 16-year-old passenger doesn't make the offense §49.045, though the case would still be prosecuted as a regular DWI.

Can I get deferred adjudication for DWI with a child passenger?

No. Code of Criminal Procedure art. 42A.102 specifically bars deferred adjudication for §49.045. Regular (straight) probation may be possible, and sometimes the charge can be negotiated down to a misdemeanor DWI, where deferred adjudication may be available.

Will I have to install an ignition interlock?

Usually, yes. Under CCP art. 17.441, a magistrate must require an interlock as a bond condition for a §49.045 charge, unless the magistrate finds it wouldn't be in the best interest of justice. It must be installed within 30 days of release.

Can I be charged with more than one count if there were several kids in the car?

Prosecutors may file a separate count for each child under 15 in the vehicle. How those counts are resolved depends on the facts and negotiations.

Will CPS take my children?

Removal is not automatic. In many DWI cases, CPS uses safety plans rather than removal. But CPS involvement is common, and your statements matter. Get legal advice before speaking with an investigator.

Does the child passenger charge affect my license suspension?

The ALR license process works the same as in any DWI. You have 15 days to request a hearing after a breath test refusal or failure. A conviction can carry its own license consequences, too.

Talk to a Fort Worth DWI Defense Lawyer

A DWI with a child passenger charge puts your record, your license, and your family at risk all at once. HLAW's Fort Worth DWI attorneys defend these cases across the Dallas-Fort Worth area, coordinating the criminal case, the ALR hearing, and any CPS or custody issues. Call (817) 993-9249 or contact us online for a free, confidential consultation.

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This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Penalties and procedures depend on the facts, your criminal history, and the court. Consult a licensed Texas attorney about your situation.

Finally, Common Sense Prevails Regarding First-time DWI Offenses

For years, I’ve had the difficult task of trying to explain to clients facing a first-time DWI charge why their case is treated more harshly under the law than other misdemeanor criminal offenses like assault, prostitution, theft, drug possession, etc. In Texas, you can be charged with one of the latter crimes and have the option of deferred adjudication probation. Deferred adjudication probation has not been an option for DWI offenses in Texas. Until now.

Effective September 1st, 2019, a first-time DWI offense may qualify for deferred adjudication probation in Texas. The Texas legislature passed legislation that was signed into law by Governor Abbott that will amend Texas Code of Criminal Procedure Art. 42A.102(b) and make deferred adjudication probation available for some first-time DWI offenses.

What is Deferred Adjudication Probation?

Deferred adjudication probation typically requires the same terms and conditions as regular probation. So, why is it a better option? In Texas, if you receive regular or “straight” probation, the judge is required to enter a finding of guilt in your case which results in a criminal conviction.

Deferred adjudication probation is different because the judge “defers” that finding of guilt and, if you successfully complete the probation, the case results in a dismissal of the charge. Thus, you avoid the penalties and consequences that result from having a criminal conviction on your record.

The New Provisions are Effective September 1st, 2019 and Are Not Retroactive.

Deferred adjudication probation on first-time DWI offenses will apply ONLY to offenses committed on or after September 1st, 2019. That means all offenses committed prior to that date will be governed by previous law that does not allow deferred adjudication probation for DWI offenses.

Are All DWI Offenses Eligible for Deferred Adjudication Under the New Law?

The new law also limits which types of first-time DWI offenses will qualify. Deferred adjudication will NOT be available for first-time DWI offenses if:

• If it is adjudicated that your blood or breath alcohol concentration was .15 or higher at the time the analysis was performed (see Texas Penal Code 49.04(d).) Or
• You held a commercial license or commercial learner’s permit at the time of the DWI arrest

Also, if you are charged with a subsequent DWI after receiving a previous conviction or convictions for DWI, you are disqualified.

The Interlock Trade-Off

For years, defense attorneys and prosecutors (yes – even prosecutors!) have lobbied for making deferred adjudication probation an option for first-time DWI offenders. However, MADD staunchly opposed the idea. So, what’s changed MADD’s position? MADD agreed to the new law because it makes first-time DWI offenders (who previously were NOT required to have an ignition interlock device as a condition of probation) now have it as a requirement. The new law requires the judge to order the ignition interlock device as a condition of probation if you receive deferred adjudication probation for a DWI offense (see the amendment to Texas Code Crim. Procedure Art. 42A.408(e-1).)

There is, however, an exception to this requirement under TCCP Art. 42A.408(e-2) of the new law. If you submit to a substance abuse evaluation and the judge determines (based on that evaluation) that the ignition interlock requirement is “not necessary for the safety of the community,” then the judge may waive the requirement. This is certainly something you would want to discuss with your attorney.

What Will My Record Look Like if I Receive Deferred Adjudication Probation for a DWI Offense?

Although successful completion of deferred adjudication probation results in a dismissal of the underlying criminal charge, there is still a criminal record that must be addressed following the dismissal. The new law limits your remedy options to a nondisclosure (sealing of the record) and even that is not guaranteed.
You will not qualify for a nondisclosure if:

• You have previously been convicted of or placed on deferred adjudication probation for another offense (other than a traffic offense that is punishable by fine only.) Or
• There is sufficient evidence to show that offense resulted in a motor vehicle accident involving another person (including a passenger in the motor vehicle operated by you.)

It’s also worth noting there is a two-year waiting period after discharge from probation to petition the court for a nondisclosure.

Can a Future DWI Arrest Be Enhanced Even if I Wasn't Convicted on the First One Under the New Law?

If, after your successful completion of deferred adjudication probation and dismissal by the court, you are arrested again for DWI, the new law allows the state to use the prior for enhancement purposes. If your case is dismissed, how can the state use it as a prior conviction? This can make for a candid debate, but, at the end of the day, this was another MADD trade-off conceded by the legislature that you should be aware of when considering long-term consequences of the new law.

DEFERRED SOUNDS GOOD - WHERE DO I SIGN? NOT SO FAST!!!

If, after September 1st, 2019, you or a loved one are faced with a first-time DWI charge and qualify for deferred adjudication probation, it might appear to be an easy option. However, we can’t stress enough how important it is that you retain a qualified DWI attorney who can analyze your case to determine If the state has enough evidence to prove their case or if there are legal or evidentiary issues present that may prove problematic for the state. The experienced DWI Attorneys at Barnett, Howard & Williams, PLLC are here to help determine what your best options truly are. So, please feel free to give us a call.

The Court of Criminal Appeals recently handed down an opinion on a petition for writ of mandamus. The two issues facing the court were (1) the nature of a misdemeanor trial after a defendant pleads guilty to a jury; and, (2) whether a trial court has the ability to defer an adjudication of guilt after a jury finds a defendant guilty. The Court of Criminal Appeals declined to grant mandamus relief on the first issue but, for the reasons discussed below, it granted mandamus relief for the second issue.

Majority Opinion: In re State ex rel. Mau, (Tex. Crim. App. 2018).

The Facts—The Trial Court Instructed the Jury to Return a Verdict of Guilty and Then Entered an Order Deferring Guilt.

The underlying case involved a defendant who was charged with the misdemeanor offense of assault bodily injury of a family member. The defendant did not waive his right to a jury trial for this offense, and the State never gave written consent to waive a jury trial. As a result, the case proceeded to a jury trial upon the defendant’s plea of not guilty. During trial, however, the defendant changed his plea to guilty, and the trial court retired the jury with an instruction that it return a verdict of guilty on the basis of the defendant’s plea, and it did.

After the defendant was found guilty, the trial court did not submit the issue of punishment to the jury. Instead, it dismissed the jury. There were no objections to the jury’s dismissal. However, the State did bring to the court’s attention that the defendant had not been properly admonished prior to pleading guilty. At that point, the court admonished the defendant without objection. Only at this point—after the jury had already returned a verdict of guilty—did the defendant waive his right to jury trial. The State, however, never consented in writing, before the entry of the guilty plea, as required by Article 1.13 of the Code of Criminal Procedure. As a result, when the trial court deferred guilt, the state sought a writ of mandamus.

The State argued to the court of appeals that the trial court lacked the authority to defer the adjudication of the defendant’s guilt, and the court of appeals denied relief. After being denied, the State, again, sought mandamus relief with the Court of Criminal Appeals.

Court of Criminal Appeals Granted Mandamus Relief—Holding the Trial Court Was Without Authority to Enter an Order of Deferred Adjudication.

In its argument to the Court of Criminal Appeals, the State maintained that the trial court lacked authority to defer guilt and argued that the trial court had a ministerial duty to enter judgment on the jury’s verdict. The State explained that by allowing the trial court to defer the defendant’s guilt, after the jury had rendered its verdict, would essentially nullify their statutory discretion to consent to a jury waiver.

In maintaining its position, the trial court relied on a court of appeals opinion, State v. Sosa, 830 S.W.2d 204 (Tex. App.—San Antonio 1992, pet. ref’d).

The issue in Sosa was whether the judge, having found the defendant guilty on his plea of not guilty in a bench trial, could thereafter withdraw the courts finding of guilt and assess deferred adjudication. The Court of Criminal Appeals allowed this because there was no authority that barred the trial judge’s discretion or the procedure in a bench trial. However, the Court of Criminal Appeals explained that the same could not be said about a jury’s verdict of guilty.

“By its very terms, the statutory option authorizing deferred adjudication is limited to defendants who plead guilty or nolo contendere before the trial court after waiving trial by jury.”

Here, at the time that the defendant pled guilty to the jury, he did not waive his right to a jury trial nor did the State consent to a waiver. Without such a waiver, the trial court was bound to resolve the issue of guilt by a jury trial and, further, the trial court then had a ministerial duty to enter judgment on the jury’s verdict. As a result, the Court of Criminal Appeals granted mandamus relief.

Takeaways . . .

While a defendant can always change his or her plea, the trial court cannot abrogate a jury’s finding of guilt by placing a defendant on deferred adjudication. At this point in the trial, the only way to defer guilt would be to grant a motion for new trial. However, this motion for new trial must have a legal basis, and deferred adjudication, alone, is insufficient.

However, a defendant may be placed on deferred adjudication after a jury trial has begun, but before a verdict has been returned if the defendant properly submits to the court, a waiver of his or her right to a jury trial, and the State agrees accordingly. The State may consent, at any time, but the consent must be in writing and filed appropriately. If the defendant waives this right and the State follows the aforementioned steps, then the judge can dismiss the jury, accept the defendant’s plea, and subsequently place the defendant on deferred adjudication.

Alcala, J., filed a concurring opinion.

Newell, J., filed a concurring opinion.