July 19, 2023

Did you know that Texas had a DWI conviction recidivism rate of 31.28% in the fourth quarter of 2022? If you’re among those facing a second conviction, you’re probably worried that the state has more severe penalties in store for you.

The charges for the second DWI in Texas are enhanced, and you might face a jail sentence of up to one year if convicted.

How does this enhancement affect other potential penalties, and what can you do to get the best outcome possible? That’s what this article will walk you through.

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Are the Penalties Worse for the Second DWI Charge?

In Texas, DWI (driving while intoxicated) charges fall under Section 49.04 of the Penal Code and are typically considered Class B misdemeanors for many first-timers.

However, the charges can be “enhanced” by prior convictions. Under Section 49.09, the second DWI offense (without any other aggravating factors) is also a misdemeanor charge, but it’s Class A and comes with stiffer penalties than the previous conviction.

Here’s what to expect:

More Jail Time

Usually, first-time offenders face a jail time of up to 180 days, with a minimum term of 3 days. This mandatory jail time could be pushed to 6 days if the person had an open container of an alcoholic beverage on them at the time of the offense.

On the second criminal conviction, the sentence ranges from a minimum of 30 days in jail to a full year.

Higher Fines

Photo of Man Drinking Beer While Driving

Repeat offenders might have to pay fines of up to $4,000. That’s double the maximum fine for the first DWI.

Longer License Suspension Period

Aside from jail time and hefty fines, the consequences for DWIs include license suspension.

First-time offenders lose their driving privileges for anywhere between 90 days and a year. However, the duration range doubles with the second offense, which means you could end up with a two-year driver’s license suspension.

Note that when the suspension period is over, you’ll have to pay a reinstatement fee of $100 and cover any outstanding fees as well.

No Chance for Deferred Adjudication

With the first DWI criminal charge, the case could end with an acquittal, conviction, dismissal, or deferred adjudication community supervision (under Section 411.0726).

Deferred Adjudication for first-time offenses means that the defendant is discharged, and the arrest remains on the record, with the possibility of being sealed if the lawyer files an order for non-disclosure.

Unfortunately, the second DWI is a different story. Since the repeat offense is subject to enhancement under Section 49.09, you’ll no longer be able to get the DWI deferred. If you’re convicted, it’ll be there on your record forever.

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Longer Education Course

If you end up with probation on your first DWI, the court might require you to take a 12-hour education course. However, the second time around, the course is 32 hours long.

The good news? You can take it online.

It’s also worth noting that the course requirement for a non-probated DWI won’t go away even if you leave Texas altogether. You’ll still need to complete a comparable course in the new state, and it can’t be shorter than half the original 32-hour length.

When Is a Person Considered Legally Intoxicated in Texas?

The legal definition of intoxication in Chapter 49 of the Penal Code is when a person’s blood alcohol concentration (BAC) is 0.08% or higher.

However, the code also points out that drivers would be considered intoxicated when alcohol, drugs, or other substances cause them to no longer have normal use of mental or physical faculties.

Is There a Limit on the Look-back Period for DWIs in Texas? 

No, there’s no limit to the look-back period in the state, which means that your first DWI still counts, no matter how long ago it was.

That said, your situation could be slightly worse if the gap is less than five years.

Under Section 49.09(h) of the Penal Code, the court will require offenders who get a second DWI conviction within five years to install a “deep-lung breath analysis mechanism.”

That’s just an ignition interlock device (IID) that keeps you from operating the car if ethyl alcohol is detected in your breath.

Keep in mind that you’ll have to get an IID for every motor vehicle you use, even when the charges are pending. Plus, the court will most likely ask you to shoulder the cost of the device yourself.

Are Repeat DWI Offenses Common in Texas?

Yes, there’s a high percentage of repeat offenders in the state since Texas retains driving records longer than other regions.

According to the National Highway Traffic Safety Administration (NHTSA), 125,941 out of the 352,372 drivers arrested for DWIs in the period between 1987 and 1990 had prior arrests. That adds up to nearly 36%!

Photo of a Man Drinking Alcohol while Driving

What Is the Best-Case Scenario for a Second DWI Charge?

Sadly, it’s not easy getting probation with community service for your second DWI. Plus, the conviction can haunt people after their release from jail since finding employment with an unsealed record can be hard.

So, considering the enhanced penalties, dismissing the charges and avoiding a conviction altogether is often the ideal outcome. Of course, that’s still challenging.

Just as with first-time DWIs, grounds for dismissal include a lack of reasonable suspicion for the stop and issues with the BAC test (administering mistakes, mishandling the results, etc.).

Get Help With Your Second DWI Charge Today

The first DWI is already a serious charge, and the situation gets more concerning the second time around. A conviction would most likely mean jail time, a large fine, a permanent criminal record, and losing your driving privileges for up to two years.

However, working with an experienced criminal defense attorney can boost your odds of getting the 2nd charge dismissed.

If you’re facing a repeat DWI charge in Montgomery, Houston, Harris, Galveston, or Fort Bend Counties, contact the team at The Napier Law Firm now to schedule an free consultation appointment.