Third Offense DWI Lawyer in San Antonio: Felony Penalties, Probation and Defense

A third DWI is a felony. The charge moves out of the county courts and into a Bexar County district court, the punishment range becomes two to ten years in prison, and the two earlier convictions become part of what the State has to prove. It is also a case with real options. Probation is possible in many third-offense cases, the prior convictions can be tested, and the new arrest can be challenged like any other. A DWI attorney in San Antonio works on the two earlier case files and the new one at the same time.

This page explains how a third offense becomes a felony, the penalties and who can grant probation, what parole and the license consequences look like, how the prior convictions are challenged, the defenses to the new charge and what a plea can and cannot do. Some statements about third-offense DWI circulate online that are wrong, and we point them out as we go. Your first consultation is free and confidential.

How a Third DWI Becomes a Felony in Texas

Under Penal Code Section 49.09(b), a DWI is a third-degree felony if “it is shown on the trial of the offense” that the person has two earlier convictions for intoxication offenses involving a vehicle, aircraft, watercraft or amusement ride. A single earlier conviction for intoxication manslaughter is enough by itself. The new charge has the same elements as any DWI: the State must prove you were intoxicated while operating a motor vehicle in a public place. The earlier convictions raise the grade of the offense, so the State must prove them too.

How the earlier convictions count matters, because many people assume an old case has dropped off:

• There is no lookback limit. Texas repealed the ten-year limit on using old intoxication convictions in 2005. A conviction from 20 years ago can still count. Ten-year windows still matter in other places, including the length of an administrative license suspension (explained below) and one of the interlock triggers in Article 42A.408(d).
• Probation does not remove an earlier conviction. Under Section 49.09(d), a conviction counts as final whether the sentence was imposed or probated.
• Deferred adjudication can count. Under Section 49.09(g), a person placed on deferred adjudication for DWI is treated as convicted for enhancement. A case you remember as dismissed after probation may still be one of the two.
• The earlier offenses need not be DWIs in a car. The statute reaches certain boating, flying and amusement ride offenses, and Section 49.09(c) includes similar offenses under other states’ laws. See our page on out-of-state DWI arrests.
• A conviction can be used once. Section 49.09(g) bars using the same conviction both to make the charge a felony and to enhance punishment under Chapter 12 of the Penal Code.

If the State cannot prove both earlier convictions, the felony enhancement fails. The case then falls back to the grade the remaining priors support, which may be a second-offense Class A misdemeanor or a first offense. If that is your situation, see our page for a second-offense DWI lawyer in San Antonio. Our page on felony DWI charges explains the other ways a DWI becomes a felony, such as a child passenger or an injury. Our article on felony DWI in Bexar County adds more on how the enhancement works locally.

Penalties for a Third DWI Conviction

• Prison. Two to ten years in the Texas Department of Criminal Justice and a fine of up to $10,000 under Penal Code Section 12.34, plus court costs and fees.
• Probation. A judge can place a person on community supervision instead of sending them to prison, and a jury can recommend it in some cases. The supervision period runs from two to ten years, as we read Article 42A.053. Article 42A.401 requires at least ten days in county jail as a condition for a third offense. That time cannot be credited later if probation is revoked.
• Ignition interlock. Article 42A.408(c) requires the court to order an interlock device when probation follows a third-offense conviction. Unless the court finds otherwise, it must be installed at your cost within 30 days of conviction and stay on for at least half of the supervision period.
• License. A conviction suspension of 180 days to two years under Transportation Code Section 521.344, and one to two years when the five-year interlock rule applies.
• Deferred adjudication. It is not available. Article 42A.102 excludes any offense for which punishment may be increased under Section 49.09. The Bexar County District Attorney’s misdemeanor diversion program is a misdemeanor program and does not apply.
• Surcharges. The Driver Responsibility Program surcharges were repealed in 2019. A page that tells you to expect $1,500 a year for three years is out of date.

A felony conviction also carries consequences that a misdemeanor does not, which we cover below. The article on DWI penalties by offense in San Antonio compares all three levels side by side.

Is Probation Possible for a Third DWI?

Often, yes, and this is one of the most important points about a third-offense case. Some websites describe a third DWI as a “3g” offense that is not eligible for probation from a jury. That is not right. The offenses on the 3g list in Article 42A.054 do not include any DWI offense under Penal Code Sections 49.04 through 49.09.

That means two routes are open:

• Probation from the judge. After a plea or a conviction, the judge may suspend the prison sentence and place you on supervision with conditions, including the jail term, an ignition interlock, alcohol education or treatment, community service, fees and reporting.
• Probation recommended by a jury. If you go to trial and ask the jury to decide punishment, Article 42A.055 lets the jury recommend probation. To use it, you must file a sworn motion before trial stating that you have never been convicted of a felony, and the jury must find that to be true.

Neither route is automatic. A judge looks at the new facts, including the test result, whether anyone was hurt, how the earlier cases ended and how you did on any earlier probation. A third offense with an accident or a very high test result is harder. A person with an earlier felony conviction loses the jury route. We tell you in the first meeting which routes you have.

Prison, Parole and What the Numbers Mean

If the sentence is prison, the term is two to ten years. Parole eligibility depends on the offense. For offenses that are not on the 3g list, Government Code Section 508.145(f) generally makes an inmate eligible when the time served plus good conduct time equals one-fourth of the sentence, or 15 years if less. Some websites state that a person must serve half of a third-offense sentence before parole eligibility. As we read the statute, that half-time rule applies to other, more serious categories of offenses, not to DWI. Parole is a decision by the Board of Pardons and Paroles and is never certain, so the practical question is how to reach a sentence or a probation term that fits your life. We check the current rules with the Department of Criminal Justice before advising you on timing.

Your License After a Third DWI Arrest

The license case is separate from the criminal case and runs on a short deadline. After the 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 final decision under Transportation Code Section 524.032.

The length is longer when you have earlier DWIs. After a failed test, the suspension is 90 days if your driving record shows no alcohol or drug contact in the previous ten years, and one year if it shows one (Section 524.022). After a refusal, it is 180 days, or two years with such a contact in the previous ten years (Section 724.035). If an earlier DWI falls inside that ten-year window, the longer period applies. Whether to fight the hearing or apply for an occupational license is covered in our page on the ALR hearing or occupational license. Once a suspension ends, see license reinstatement and occupational licenses.

Under Section 49.09(h), a third offense committed within five years of the most recent earlier offense also brings an ignition interlock order on every vehicle you own or operate, and a bar on driving an unequipped vehicle before the first anniversary of the end of the suspension. 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. See our article on ignition interlock devices for how installation and monitoring work.

Challenging the Prior Convictions

In a felony DWI, the earlier files are evidence of an element of the offense. We obtain the certified judgments and the court files for both and ask:

• Is it the same person? The State must connect you to each judgment, usually through fingerprints, photographs or records. A common name or a missing identifier is a weakness.
• Is each one a qualifying offense? The label on a judgment, especially one from another state, may not match the statute.
• Was each one valid? A conviction obtained without counsel, without a valid waiver of counsel or without proper admonishments can sometimes be attacked. We read the record, not just the docket sheet.
• Was each one final and a conviction? A dismissal, an acquittal or a case that never reached judgment may not count. A deferred adjudication does, as explained above.
• Do the dates fit? The five-year interlock rule and the ten-year license and interlock windows depend on offense dates, not on what the client remembers.

Removing one prior can reduce a felony to a misdemeanor, with a different court, a different punishment range and different consequences. That is why the earlier files are often the first thing we ask for. Not every prior can be removed, and we tell you early if it cannot.

Defenses to the New Charge

The priors raise the grade of the offense. They do not prove the new charge. The State still has to establish intoxication and operation, and the same questions apply as in any DWI: whether the stop was lawful, whether there was probable cause to arrest, whether the field sobriety tests were given and scored correctly, whether the breath or blood result is reliable and whether there is another explanation for what the officer saw. Our article on challenging the stop and sobriety tests goes through them. If a refusal or a blood draw is involved, the rules on warrants matter, and we explain them in no-refusal weekends and blood warrants and refusing a breath test. A refusal can be used against you at trial under Transportation Code Section 724.061, so speak with a lawyer before assuming it helped.

Because the stakes are higher, a felony case deserves a complete review of the video, the testing records and the officer’s training. A successful motion to suppress can end the case. Our page on how to get a DWI dismissed explains why that takes evidence and not an application.

Plea, Probation or Trial in a Felony DWI

Deferred adjudication is not available, so a third offense resolves in one of four ways:

• A negotiated plea to probation. The agreement may include the ten-day jail condition, an interlock, treatment and a long supervision term. We look hard at whether the conditions are ones you can complete, because a revocation can send you to prison.
• A negotiated prison sentence. In some cases, a short prison term is the better choice than a long supervision period with a high risk of revocation. We explain the tradeoff and do the arithmetic with you.
• A reduction. If a prior cannot be proved or the new case has a real weakness, a reduction to a misdemeanor may be on the table. We confirm what the prosecutor is willing to do.
• A trial. A prepared trial defense gives a motion or a negotiation its weight. A felony trial can be to a judge or a jury, and punishment can be decided by either. We tell you honestly what a trial would involve before you decide.

Probation after a third offense is serious. Violating a condition, including a missed interlock test, a positive alcohol test or a missed report, can lead to a motion to revoke and the original prison sentence. Our page on probation violations for DWI describes how those hearings work. Bexar County also has a DWI court for people on probation in repeat DWI cases who meet its clinical and residency requirements. It is a post-conviction program with narrow eligibility, and we check whether you would qualify before suggesting it.

Consequences of a Felony DWI Conviction

A felony conviction changes more than the sentence. It limits firearm rights, voting while the sentence is being served, jury service and many jobs and licenses. A felony stays on your record, and a third-offense conviction is not eligible for the nondisclosure available to certain first-time misdemeanor DWI convictions. See our article on how long a felony stays on your record. Commercial drivers face federal disqualification rules that are harsher after repeated convictions, 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, and an insurer may raise rates or decline to renew. If your case involves other felony charges, you can also 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. Gather everything you have from both earlier cases: the judgments, plea papers, probation records and proof that you completed the conditions.
3. Write down what you remember about the new arrest while it is fresh: where you were, what you drank and ate and when, what the officer said and asked and what tests were given.
4. Keep every document from the jail, including the bond paperwork and any breath or blood paperwork.
5. Follow every bond condition, including an interlock if one was ordered, and go to every court setting. A missed court date in a felony case can lead to a new charge.
6. Do not discuss the arrest with anyone but your lawyer, and stay off social media.
7. Do not decide on a plea, and do not talk to an investigator, before we have seen the video, the testing records and both 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.
• Grand jury indictments in Texas: what happens before a felony case is filed.
• 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.

Why San Antonio Clients Choose Barton & Associates for DWI Defense

A third-offense DWI is won or lost on the records: the two prior judgments, the video and the testing file. Our criminal defense trial attorneys read all three 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 and the date of your next court setting, and any indictment you have received
• The judgment, plea papers and probation records from every earlier DWI or DUI, in any state
• The dates of each earlier arrest, conviction and the end of any suspension or probation
• Whether you took a breath test, gave blood or refused, and any paperwork about it
• Any video or photographs from the stop or the jail, and the names of witnesses
• 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 is the penalty for a third DWI in Texas?

A third DWI is a third-degree felony under Penal Code Section 49.09(b). The punishment is two to ten years in the Texas Department of Criminal Justice and a fine of up to $10,000. A judge may instead place you on community supervision, which carries a jail condition of at least ten days, an ignition interlock device and other conditions. The license suspension after a conviction is 180 days to two years.

Is a third DWI always a felony in Texas?

It is a felony if the State proves two earlier qualifying convictions, or one earlier conviction for intoxication manslaughter, at trial. If the State cannot prove both priors, the felony enhancement fails and the case is graded on the priors that can be proved. That may be a second-offense Class A misdemeanor or a first offense, which is why we examine the prior files first.

Can I get probation for a third DWI?

Often, yes. A third-offense DWI is not on the list of offenses in Article 42A.054 that are excluded from community supervision. A judge can grant probation, and a jury can recommend it if you have no earlier felony conviction and file a sworn motion before trial. Probation includes at least ten days in county jail, an interlock and other conditions, and a violation can lead to a prison sentence.

Is a third DWI a 3g offense?

No. The 3g list in Article 42A.054 does not include any DWI offense under Penal Code Sections 49.04 through 49.09. Statements that a third DWI is a 3g offense with no jury probation and a half-time parole rule are not supported by the statute as we read it. Intoxication offenses that cause injury or death are handled differently, so the facts of your case matter.

Can a third 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 or proof of operation. A reduction to a misdemeanor can follow if one of the prior convictions cannot be proved. Prosecutors are often less flexible in felony cases, so the early work on the evidence and the prior judgments matters even more.

Does a DWI from many years ago count as one of the two priors?

Yes. Texas repealed the ten-year limit on using old intoxication convictions in 2005, so a conviction from 15 or 20 years ago can still count toward a felony. The time since the earlier offenses does matter in other places, including the length of an administrative license suspension and one of the interlock triggers.

Do out-of-state DWIs count toward a third offense?

They can. Section 49.09(c) includes offenses under other states’ laws that prohibit similar conduct. Whether a particular conviction qualifies depends on the statute under which you were convicted and the court record, so we obtain the judgment and compare it to Texas law before accepting that it counts.

Does deferred adjudication count as a prior conviction?

It can. Section 49.09(g) treats a person placed on deferred adjudication community supervision for DWI as convicted for enhancement. A probated sentence counts as well under Section 49.09(d). A case that ended without a conviction on your record may still be one of the two priors, so bring the paperwork from it.

Can I get deferred adjudication for a third DWI?

No. Article 42A.102 excludes an offense for which punishment may be increased under Section 49.09. A third offense is resolved by a dismissal, a reduction, a conviction with probation or a conviction with a prison sentence.

How much of a prison sentence will I serve for a third DWI?

It depends on the sentence and on the parole board. For offenses not on the 3g list, parole eligibility generally comes when time served plus good conduct time equals one-fourth of the sentence under Government Code Section 508.145(f). Parole is never certain. We review the current rules with you before any plea that involves prison.

Will I have to use an ignition interlock device?

Probably. Article 42A.408(c) requires one when a person is placed on probation after a conviction punished under Section 49.09(b). Section 49.09(h) also requires one if the offense was committed within five years of the previous one. A magistrate must also require one as a bond condition for a subsequent DWI unless it would not serve the interest of justice.

How long will I lose my license after a third DWI?

It depends on the case. After the arrest, DPS can suspend for 90 days or one year after a failed test, depending on your driving record in the previous ten years, and for 180 days or two years after a refusal. After a conviction, the suspension is 180 days to two years, or one to two years if the five-year rule applies. You may be eligible for an occupational license.

How can the prior convictions be challenged?

We look at whether the State can prove each judgment and that you are the person named in it, whether each is a qualifying offense, whether it was obtained without counsel or a valid waiver and whether the dates fit the statute. A constitutionally defective prior can sometimes be attacked, but not every prior can be. If one prior fails, the felony charge can drop to a misdemeanor.

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 Third DWI

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