One of the first questions I get asked when talking with a potential client is whether "I'm going to jail"? While I hate that question, I have to assure them that a jail sentence is seldom the end result in a "run of the mill" DWI case.

The reason I hate the question is that our first approach to any DWI case is to win it - which means either getting it dismissed, winning at trial, or having the charges reduced. I don't start focusing on plea negotiations until the case has been fully investigated. While that's my thinking and approach, I know potential clients still worry about the worst possible outcome. So here's what the law says about punishment in a DWI case:

First Offense DWI

A first offense for DWI is a class B misdemeanor which is punishable by at least 72 hours and up to 180 days in jail and a $2,000 fine. If it's your first DWI, in most cases the sentence will be suspended and you will be placed on community supervision. Generally, the probation term is 12-24 months, and 24 months is the longest term that can be imposed - at least at first.

Open containers

If you had an open container in your vehicle the minimum term goes from 72 hours to 6 days.

"Enhanced" DWI

Texas now has an "enhanced" DWI offense, which applies if the person's alcohol concentration was greater than 0.15, The punishment range then goes to a Class A misdemeanor, which means the punishment range is up to 1 year in the county jail and a $4,000 fine.

Second Offense DWI

What if it's not your first DWI? As you would guess, the punishment range goes up. A second DWI is still a misdemeanor. It's a class A misdemeanor, with a minimum punishment of 30 days. If you have more than one you just graduated to a felony. As with baseball, two strikes and you're out - you get to move on into felony court.

While most DWI defendants end up with a term of probation (technically called "community supervision"), there are a number of conditions and restrictions that will be imposed. For a more thorough discussion look at the "DWI in Texas" section of our book DWI Survival Guide.

But not so fast......

As you might guess, there are exceptions - which means there situations where a first offense DWI can end up being a felony, which means there is the possibility of prison.

The first is driving while intoxicated with a child under 15 in the car. That automatically makes the offense a state jail felony. The punishment range for a state jail felony is 180 days up to 24 months in a state jail - which is a type of facility run by the Texas Department of Criminal Justice, the same institution that runs all the other prisons.

The second way is if you are an accident that results in serious bodily injury. That offense is labeled "intoxication assault", and will be a third-degree felony, which carries a penalty range of 2 - 10 years in prison.

As you can see, the question of "am I going to jail" is not subject an easy answer. A number of different factors are involved and must be evaluated. If you want more information, please download a FREE copy of our DWI survival guide. And if you are looking for a lawyer, please give us a call and schedule an appointment to discuss your case.



Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.