Felony DWI Lawyer in San Antonio: What Makes a DWI a Felony and How We Defend It

Most DWI arrests are misdemeanors. A few facts change that: two earlier convictions, a child in the car, a person who is hurt or a person who dies. When one of them is present, the case moves to a Bexar County district court, the punishment range reaches into state jail or prison and the consequences follow you for the rest of your life. These cases are also not decided by the label on the charge. They turn on proof that the State has to produce, such as the prior judgments, the age of a passenger, the cause of the injury and the reliability of a blood result. A DWI attorney in San Antonio starts by finding out which of those facts the State can actually prove.

This page explains each way a DWI becomes a felony in Texas, the punishment for each, who can grant probation, how a deadly weapon finding changes the picture, what happens to your license and how we approach the defense. Your first consultation is free and confidential.

Five Ways a DWI Becomes a Felony in Texas

• A third DWI. Under Penal Code Section 49.09(b), a DWI is a third-degree felony when the State shows two earlier intoxication convictions, or one earlier conviction for intoxication manslaughter. Texas has no ten-year limit on using old convictions. See our page on a third-offense DWI lawyer in San Antonio for how the priors are proved and challenged.
• A child passenger. Under Section 49.045, driving while intoxicated with a passenger younger than 15 is a state jail felony, even on a first arrest. See our page on DWI with a child passenger.
• Intoxication assault. Under Section 49.07, causing serious bodily injury to another person while intoxicated, by accident or mistake, is a third-degree felony. Serious bodily injury means an injury that creates a substantial risk of death, or causes serious permanent disfigurement or protracted loss or impairment of a body part or organ. Our page on intoxication assault covers these cases.
• Intoxication manslaughter. Under Section 49.08, causing another person’s death while intoxicated is a second-degree felony. Our page on intoxication manslaughter explains the offense and the defenses.
• Certain injured or killed victims. Section 49.09 raises the grade when the victim is on official duty. Serious bodily injury to a firefighter or emergency medical services worker is a second-degree felony. Serious bodily injury to a peace officer or judge is a first-degree felony, and so is the death of any of these. Serious bodily injury that leaves the victim in a persistent vegetative state is a second-degree felony.

The same conduct in a different setting can raise the same charges. The statutes cover boating, flying and amusement rides as well as motor vehicles. In every category, the State has to prove the underlying intoxication offense and the fact that makes it a felony.

Punishment for Each Felony DWI

• Third DWI (third-degree felony). Two to ten years in prison and a fine of up to $10,000 (Penal Code Section 12.34).
• DWI with a child passenger (state jail felony). 180 days to two years in a state jail and a fine of up to $10,000 (Section 12.35). Two earlier convictions raise it to a third-degree felony under Section 49.09(b).
• Intoxication assault (third-degree felony). Two to ten years and a fine of up to $10,000. If you are placed on probation, Article 42A.401 requires at least 30 days in county jail.
• Intoxication manslaughter (second-degree felony). Two to 20 years and a fine of up to $10,000 (Section 12.33). If you are placed on probation, Article 42A.401 requires at least 120 days of confinement.
• Officer, firefighter and emergency worker victims. Second-degree felonies carry two to 20 years. First-degree felonies carry five to 99 years or life, and a fine of up to $10,000 (Section 12.32).

Some websites say a felony DWI brings an “automatic” two-year license suspension. As we read Transportation Code Section 521.344, that is not what the statute says. We explain the actual ranges below. The article on DWI penalties by offense in San Antonio compares the misdemeanor levels with the third offense.

Probation, Prison and Parole in a Felony DWI

It is common to read that intoxication assault and manslaughter are “3g” offenses and that no jury can grant probation. Neither offense appears on the 3g list in Article 42A.054, and Article 42A.056, which lists the cases excluded from jury-recommended probation, does not name them. That does not make probation easy. Three things decide whether it is available:

• A deadly weapon finding. In an injury or death case, prosecutors may ask the court to find that the vehicle was used as a deadly weapon. Under Article 42A.054(b), a judge cannot order probation under the usual rule after such a finding, and under Government Code Section 508.145(d) the parole eligibility rule changes from one-fourth of the sentence to one-half. Whether the finding is sought, and whether it can be defeated, is one of the central questions in these cases.
• The jury route. If you go to trial and ask the jury to decide punishment, Article 42A.055 lets the jury recommend probation. You must file a sworn motion before trial stating that you have never been convicted of a felony, and the sentence the jury imposes cannot exceed ten years.
• The state jail route. For a child passenger case, the judge may grant probation or order the state jail sentence served, in whole or in part. A jury’s recommendation controls the choice.

Deferred adjudication is not available in any of these cases. Article 42A.102 excludes charges under Sections 49.045, 49.07 and 49.08 and any offense punishable under Section 49.09. Parole is a decision by the Board of Pardons and Paroles and is never certain. For offenses without a deadly weapon finding, eligibility generally comes when time served plus good conduct time equals one-fourth of the sentence, or 15 years if less (Section 508.145(f)). We confirm the current rules with you before any plea that involves prison.

Your License After a Felony DWI Arrest

The license case is separate from the criminal case and runs on a short deadline. After an arrest, DPS can suspend your license in an administrative case. You have 15 days from receiving the notice to request a hearing, and a late request is denied. Our page on the 15-day ALR deadline explains it. A timely request stays the suspension until the administrative law judge’s decision under Transportation Code Section 524.032. Deciding whether to fight the hearing or apply for an occupational license is covered in our page on the ALR hearing or occupational license.

After a conviction, the court sets the suspension within a range. Section 521.344 provides 90 days to one year for a conviction under Section 49.045 or 49.07, 180 days to two years for intoxication manslaughter or when the punishment is enhanced under Section 49.09(a) or (b), and one to two years when the five-year interlock rule in Section 49.09(h) applies. A second intoxication assault conviction within five years carries a one-year suspension. Once a suspension ends, see license reinstatement and occupational licenses. A magistrate must also require an interlock as a bond condition for a subsequent DWI under Article 17.441 unless it would not serve the interest of justice. Our article on ignition interlock devices explains how they work.

How a Felony DWI Case Moves Through Bexar County

A felony case follows a different path from a misdemeanor. After the arrest, a magistrate sets bond and conditions. The case is then presented to a grand jury, which decides whether to indict. If an indictment is returned, the case is assigned to a district court, where you are arraigned and the court sets deadlines for motions and a trial date. Our article on grand jury indictments explains this step. The period before indictment is often a useful time to give the prosecutor information, such as a flaw in the stop or in a prior judgment. We also keep working on the license case in the meantime.

Defenses in a Felony DWI Case

The felony label adds an element to prove. It does not remove the need to prove the underlying DWI. We look at both:

• The stop and the arrest. Was there a lawful reason to stop the car and probable cause to arrest? Our article on challenging the stop and sobriety tests goes through the issues.
• The test. A blood draw at a hospital after a crash raises questions about consent, warrants, timing and chain of custody. See no-refusal weekends and blood warrants and the page on refusing a breath test. A refusal can be used against you at trial under Transportation Code Section 724.061.
• Causation. In an intoxication assault or manslaughter case, the State must prove that the intoxication caused the injury or death. Speed, road design, weather, mechanical failure, another driver’s conduct and the victim’s own actions can matter. We work with accident reconstruction and medical experts when the facts call for it.
• Operation and the passenger. The State must show you were operating the vehicle in a public place. In a child passenger case, it must also prove the passenger’s age.
• The prior convictions. In a third-offense case, each earlier judgment must be proved, tied to you and, in some circumstances, can be attacked as invalid.

A suppression ruling can end a felony case or change it entirely. Our page on how to get a DWI dismissed explains why that takes evidence and not an application.

Plea, Probation or Trial

Because deferred adjudication is not available, these cases resolve in one of four ways: a dismissal, a reduction to a lesser offense, a plea to probation or prison, or a trial. In an injury or death case, the victim and the family are involved, and the prosecutor may seek restitution and a long sentence. We talk through what the State is likely to offer and what a jury might do, and we make sure you understand a plea before you make it. Probation carries risk. A missed interlock test, a positive alcohol test or a missed report can lead to a motion to revoke and the original sentence, and the jail time served as a condition is not credited. Our page on probation violations for DWI describes how those hearings work.

Consequences of a Felony DWI Conviction

A felony conviction limits firearm rights, voting while the sentence is being served, jury service and many jobs and licenses. It stays on your record, and our article on how long a felony stays on your record explains the limits. Commercial drivers face federal disqualification rules covered in our page on CDL holders and DWI. Service members should read about military DWI consequences. Licensed professionals may have reporting duties, and our page on arrests of professional license holders explains the questions to ask. A non-citizen should consult an immigration lawyer before any plea. If the injury or death case leads to a civil claim or an insurance dispute, tell us at the first meeting. For other felony charges, you can reach a San Antonio felony attorney at the same office.

What This Means for Your Bexar County Case

1. Find the notice of suspension and count 15 days from the day you received it. Your license is a separate deadline from your court date.
2. Do not speak to investigators, insurance adjusters or the other side without a lawyer. If there was a crash, statements made at the scene or in the hospital can be used.
3. Write down what you remember: where you were, what you drank and ate and when, the road and weather and what the officers said and asked.
4. Keep every document from the jail, the hospital and the bond paperwork, and any letter from a court or a grand jury.
5. Follow every bond condition, including an interlock if ordered, and go to every court setting.
6. Gather the judgments and plea papers from any earlier DWI or DUI, in any state.
7. Do not decide on a plea before we have seen the video, the crash and testing records and any prior judgments.

More About DWI Charges in San Antonio

These articles go further into questions that come up after a felony DWI arrest. Each one is written for Texas and Bexar County.

• Charged with DWI in San Antonio: what happens from arrest to resolution.
• Texas ALR license suspension guide: how the administrative case works from notice to hearing.
• Texas DWI case timeline: the usual stages from arrest to resolution.
• Felony vs. misdemeanor in Texas: how the two differ in court and in punishment.
• Common questions after a DWI arrest: short answers to what people ask in the first week.
• Second-offense DWI lawyer in San Antonio: how a second charge differs from a third.

Why San Antonio Clients Choose Barton & Associates for DWI Defense

A felony DWI is won or lost on the records: the video, the crash and testing file and any prior judgments. Our criminal defense trial attorneys read all of them before discussing a plea, and prepare the case as one that may be tried. Our founder, Gary J. Barton, is Board Certified in Criminal Law, a former Capital Murder prosecutor and a trial lawyer who has tried more than 100 cases to a jury. Barton & Associates has handled Texas trial work since 2001.

We cannot promise a result, and you should be wary of any lawyer who does. What we can do is tell you what the State has, where we see weaknesses and what we recommend, including when a plea is the sensible choice. The first consultation is free and confidential. Our San Antonio office is at 115 Camaron Street, San Antonio, Texas 78205. You can get directions to our office before your visit. If you can, bring or send the following when you call.

• The arrest paperwork, the notice of suspension and the date you received it
• Your bond conditions, the date of your next court setting and any indictment
• Any crash report, hospital or medical records and insurance information
• Whether you took a breath test, gave blood or refused, and any paperwork about it
• Any video or photographs from the scene, the stop or the jail, and the names of witnesses
• The judgment, plea papers and probation records from every earlier DWI or DUI, in any state
• Whether you hold a commercial driver’s license, a professional license or a security clearance
• Any interlock records, class certificates and proof of insurance filings

Frequently Asked Questions

What makes a DWI a felony in Texas?

A DWI becomes a felony when the State proves a third DWI (two earlier intoxication convictions, or one for intoxication manslaughter), a passenger younger than 15, serious bodily injury to another person or the death of another person. Additional categories apply when the victim is a peace officer, judge, firefighter or emergency medical worker on duty. Each one has its own punishment range.

What is the penalty for a felony DWI in Texas?

It depends on the category. A child passenger case is a state jail felony with 180 days to two years. A third DWI or intoxication assault is a third-degree felony with two to ten years. Intoxication manslaughter is a second-degree felony with two to 20 years. Each carries a fine of up to $10,000, and certain victim categories carry first-degree punishment of five to 99 years or life.

Is a DWI with a child in the car a felony?

Yes. Under Penal Code Section 49.045, driving while intoxicated with a passenger younger than 15 is a state jail felony, even on a first arrest. The punishment is 180 days to two years in a state jail and a fine of up to $10,000. The State must prove the passenger’s age and that you were intoxicated.

Can I get probation for a felony DWI?

Often, yes, but it depends on the charge and the facts. These offenses are not on the 3g list in Article 42A.054. A judge can grant probation, and a jury can recommend it if you have no earlier felony conviction and the sentence is no more than ten years. A deadly weapon finding changes the judge’s options. Probation includes jail time, an interlock and other conditions.

Is intoxication manslaughter a 3g offense?

No, not by its terms. Neither intoxication assault nor intoxication manslaughter appears on the list in Article 42A.054. The practical issue is a deadly weapon finding, which prosecutors sometimes seek when the vehicle caused the injury or death. Such a finding limits probation and changes the parole rule, so we address it early.

What is the difference between intoxication assault and intoxication manslaughter?

Intoxication assault requires serious bodily injury to another person, caused by the driver’s intoxication, and is a third-degree felony. Intoxication manslaughter requires the death of another person, caused by the driver’s intoxication, and is a second-degree felony. In both, the State must prove that intoxication caused the harm, not just that the driver was intoxicated when it happened.

Can a felony DWI be reduced or dismissed?

Possibly. A dismissal usually follows a problem in the State’s evidence, such as the stop, the arrest, the testing, causation or proof of a prior. A reduction can follow if the felony-level fact cannot be proved. Prosecutors treat injury and death cases with great seriousness, so the early work on the evidence matters even more.

Can I get deferred adjudication for a felony DWI?

No. Article 42A.102 bars deferred adjudication for charges under Penal Code Sections 49.045, 49.07 and 49.08 and for any offense whose punishment may be increased under Section 49.09. A felony DWI is resolved by a dismissal, a reduction, a conviction with probation or a conviction with a sentence to be served.

Will I lose my license for a felony DWI?

A suspension is likely, but the length depends on the case. After the arrest, DPS can suspend for 90 days or one year after a failed test and for 180 days or two years after a refusal. After a conviction, the court sets a suspension of 90 days to one year, 180 days to two years or one to two years, depending on the offense and any prior. You may be eligible for an occupational license.

How long is the prison sentence for a felony DWI?

It depends on the grade. A state jail felony carries 180 days to two years. A third-degree felony carries two to ten years. A second-degree felony carries two to 20 years. A first-degree felony, such as injury to a peace officer, carries five to 99 years or life. A probated sentence is suspended while you complete the conditions, and a violation can lead to the original sentence.

How much of a prison sentence will I serve?

It depends on the sentence, good conduct time and the parole board. Without a deadly weapon finding, parole eligibility generally comes when time served plus good conduct time equals one-fourth of the sentence under Government Code Section 508.145(f). With a deadly weapon finding, the rule changes to one-half. Parole is never certain, so we review the rules before any plea involving prison.

What happens at a grand jury in a felony DWI case?

A grand jury hears the State’s evidence and decides whether to indict. You usually do not testify, and defense lawyers are not in the room. An indictment moves the case to a district court. The period before indictment can be used to give the prosecutor information that may change the charge, so call a lawyer as soon as possible.

Can I be charged with a felony if the child was not hurt?

Yes. A DWI with a passenger younger than 15 is a state jail felony whether or not the child is injured. The charge turns on the passenger’s age and your intoxication. An injury to the child could add other charges, such as intoxication assault, and a child welfare investigation can follow, so tell your lawyer everything at the first meeting.

Can a felony DWI be sealed or expunged?

A conviction cannot be expunged, and a felony DWI conviction does not qualify for the nondisclosure available to certain first-time misdemeanor convictions under Government Code Section 411.0731. An arrest that ends in a dismissal or acquittal may be expunged. Ask us about your record at the end of the case, because the options depend on how it ends.

Talk With a San Antonio Lawyer About Your Felony DWI

The first days after a felony DWI arrest decide how much we have to work with, because the license deadline is short and evidence can be lost. Speak with a San Antonio DWI lawyer at Barton & Associates about the charge, the facts and what we recommend.

Call our San Antonio office at 210-500-0000 or complete the online Free Consultation form to schedule a confidential meeting. For charges beyond DWI, you can also reach a San Antonio criminal defense attorney at the same office, 115 Camaron Street, San Antonio, Texas 78205.

Main Category: Criminal Defense
Practice Area Category: DWI & Intoxication
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000