Austin DWI Charges: The Difference Between a Misdemeanor and a Felony
If you have been charged with DWI in Austin, one of the first things you need to understand is what level of offense you are facing. That distinction — misdemeanor or felony — determines which court handles your case, what the sentencing range looks like, what collateral consequences follow a conviction, and how aggressively the Travis County District Attorney’s office is likely to pursue the charge. It is not a technicality. It is the framework for everything that comes next.
Here is what Texas law says about how DWI charges are classified, and what that classification means for your case in Travis County.
How Texas Law Classifies DWI Charges
The base DWI offense in Texas is found at Texas Penal Code § 49.04. It defines driving while intoxicated as operating a motor vehicle in a public place while intoxicated — meaning either a blood alcohol concentration (BAC) of 0.08 or higher, or the loss of normal use of mental or physical faculties due to alcohol, drugs, or a combination of both.
That base offense is a Class B misdemeanor. But Texas law builds a tiered system of enhancements on top of it, and where your charge lands on that tier depends on your prior record, your BAC at the time of arrest, and the circumstances of the incident.
Class B Misdemeanor DWI — The Base Offense
A first-offense DWI with no aggravating factors is a Class B misdemeanor under Texas Penal Code § 49.04(b). The punishment range is 72 hours to 180 days in county jail and a fine of up to $2,000. If your BAC was 0.15 or higher at the time of the offense, the charge is elevated to a Class A misdemeanor even on a first offense — more on that below.
In Travis County, misdemeanor DWI cases are handled in the county courts at law, not the district courts. The Travis County District Attorney’s office prosecutes these cases, and Austin Police Department officers are typically the arresting agency for in-city arrests, though Travis County Sheriff’s Office deputies handle cases in unincorporated areas.
A Class B misdemeanor is still a criminal conviction. It goes on your record, it counts as a prior offense if you are ever charged again, and it carries the license suspension consequences we have covered separately. People sometimes underestimate a first-offense DWI because it sounds less serious than a felony — that is a mistake.
Class A Misdemeanor DWI — High BAC or Open Container
Two circumstances push a first DWI to a Class A misdemeanor under Texas Penal Code § 49.04(d): a BAC of 0.15 or higher at the time of the offense, or an open container of alcohol in the vehicle at the time of arrest under § 49.031.
A Class A misdemeanor carries a punishment range of up to one year in county jail and a fine of up to $4,000. The high-BAC enhancement also triggers mandatory ignition interlock as a condition of bond under Texas Code of Criminal Procedure Art. 17.441, meaning the device goes on your vehicle before your case is resolved, not after.
Prosecutors in Travis County treat high-BAC cases more seriously at every stage — from plea negotiations to sentencing recommendations. A BAC significantly above 0.15 is the kind of number that tends to move a DA toward seeking jail time rather than probation, particularly if there are any aggravating circumstances around the stop.
Second-Offense DWI — Still a Misdemeanor, Higher Stakes
A second DWI conviction in Texas is a Class A misdemeanor regardless of BAC, under Texas Penal Code § 49.09(a). The punishment range is the same as Class A — up to one year in county jail and up to $4,000 in fines — but the practical reality is that Travis County prosecutors treat second offenses very differently from first offenses.
With a prior conviction on your record, the DA’s office is more likely to push for jail time, longer probation terms, and stricter conditions. Judges in the Travis County county courts at law have seen enough repeat DWI cases to take the pattern seriously. Probation is still possible on a second offense, but it is not a given, and the conditions tend to be more onerous.
A second offense also makes you eligible for enhanced penalties if you pick up a third charge — which is where the felony line gets crossed.
Felony DWI — Third Offense or More
A third offense DWI — or any subsequent offense — is a third-degree felony under Texas Penal Code § 49.09(b). The punishment range jumps dramatically: two to ten years in the Texas Department of Criminal Justice and a fine of up to $10,000.
This is where the case moves out of the county courts at law and into the Travis County district courts. Felony DWI cases in Travis County are handled in the 167th, 147th, 390th, 403rd, and 450th District Courts. The Travis County DA’s office assigns felony prosecutors to these cases, and the approach is categorically different from misdemeanor prosecution.
At the felony level, the consequences extend well beyond the courtroom. A felony conviction in Texas means the loss of the right to vote while incarcerated, the loss of the right to possess a firearm, significant employment barriers, and a permanent felony record that cannot be expunged. Deferred adjudication is not available for DWI under Texas law, which means there is no mechanism to resolve even a third-offense DWI in a way that avoids the conviction itself.
DWI with a Child Passenger — Felony Regardless of Prior Record
Texas Penal Code § 49.045 makes DWI with a child passenger under 15 years old a state jail felony, regardless of whether you have any prior DWI history. This is one of the most significant felony enhancements in the DWI statute because it can turn a first-time offender with no record into a felon based solely on who was in the vehicle.
A state jail felony carries 180 days to two years in a state jail facility and a fine of up to $10,000. These cases are handled in Travis County district courts and are prosecuted aggressively by the DA’s office. Child endangerment allegations, even in the absence of an accident, carry significant weight with both prosecutors and judges.
Intoxication Assault and Intoxication Manslaughter
When a DWI involves an accident causing serious bodily injury, the charge escalates to intoxication assault under Texas Penal Code § 49.07 — a third-degree felony with a punishment range of two to ten years. If someone dies, the charge is intoxication manslaughter under § 49.08, a second-degree felony carrying two to twenty years in prison.
These are not DWI cases in the conventional sense. They are violent felony prosecutions that happen to involve a vehicle. The Travis County DA’s office assigns its most experienced felony prosecutors to intoxication manslaughter cases, and the investigative resources — accident reconstruction, toxicology, witness interviews — are significantly greater than what goes into a standard DWI case. If you are facing either of these charges, the stakes could not be higher.
What Travis County Prosecutors Have to Prove
Regardless of the level of the charge, the Travis County DA’s office must prove the same core elements beyond a reasonable doubt: that you were operating a motor vehicle, in a public place, while intoxicated. Intoxication can be proved through BAC evidence — breath or blood test results — or through field sobriety test observations, officer testimony, and dashcam or bodycam footage showing loss of normal faculties.
Breath and blood test results are not unassailable. The reliability of the testing equipment, the calibration and maintenance records, the handling of blood samples, and the qualifications of the person administering the test are all subject to challenge. Field sobriety tests are standardized procedures, and deviations from the protocol matter. The stop itself has to be legally valid — if there was no reasonable suspicion to pull you over, everything that came after may be suppressible.
An experienced DWI defense attorney does not just look at the result on the test. He looks at every link in the chain from the moment the officer first observed your vehicle to the moment the sample was processed.
Why the Level of the Charge Matters from Day One
The classification of your DWI charge shapes every decision in the case — whether to fight the charge at trial, whether to negotiate a plea, what outcome is realistically achievable, and what the long-term consequences of each path look like. A first-offense Class B misdemeanor and a felony third offense are handled by different courts, prosecuted by different divisions of the DA’s office, and carry consequences that are in entirely different categories.
Getting that analysis right from the beginning is not optional. It is the foundation of the defense.
Gary Barton is Board Certified in Criminal Law by the Texas Board of Legal Specialization — a distinction held by fewer than two percent of Texas attorneys. Before founding Barton & Associates, he prosecuted felony cases in Bexar County, including a term as the youngest Major Crimes Unit chief in Texas history, trying over 100 jury trials. He knows how the Travis County District Attorney’s office evaluates DWI cases at every level, because he spent years on that side of the courtroom.
If you have been charged with DWI in Austin — misdemeanor or felony — call our Austin office at 512-THE-FIRM (843-3476) or use the Schedule a Free Consultation form on our website. The sooner you understand exactly what you are facing, the better positioned you are to fight it.
