What is Driving While Intoxicated under Texas Law?

The State of Texas defines intoxication in Texas Penal Code Title 10, Chapter 49.

The state defines the term "intoxicated" in two distinct ways:

  • Not having the normal use of mental or physical faculties due to the consumption of drugs or alcohol; and/or

  • Having a BAC of 0.08% of more.

Yes, that means you can be charged with a DWI while still under the legal limit of 0.08% BAC if you are deemed to not have the normal use of your mental or physical faculties due to the use of drugs and/or alcohol.

For certain classes of drivers, the BAC limit is lower.  Drivers under 21 years of age are prohibited from driving with any detectable amount of alcohol in their bodies.  The BAC limit for commercial drivers is 0.04% BAC.




Sec. 49.01. DEFINITIONS.

In this chapter:  (2) "Intoxicated" means:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08% or more.


Note: The above table only includes fines.  Additional court costs and fees may be imposed.  This table does not include license surcharges.  See the License Surcharges page for more information.

DWI Penalties: Adults

The penalties in Texas associated with driving while intoxicated (DWI) have grown increasingly harsher over the past few decades. While specific penalties imposed after a DWI depend on a variety of factors, the most relevant are the number of previous offenses as well as your blood alcohol content (BAC) at the time of your arrest. Below is some information on the penalties that may be imposed after being accused of driving while intoxicated by drugs or alcohol:

1st DWI Charge / Offense – After your first DWI offense in Texas, you may be fined up to $2,000 and spend between three and 180 days in jail. Additionally, your license may be suspended for up to two years, and there may be an annual surcharge of as much as $2,000 to keep your license for three years. Finally, you may be required to install an ignition interlock device on your car and attend a DWI Education program.

2nd DWI Charge / Offense – After a first offense, the penalties associated with DWI in Texas increase significantly. A second offense could result in fines of up to $4,000 and a jail sentence of one month to one year. The license suspension associated with a 2nd DWI offense can last up to two years, and there may be a three-year annual surcharge of up to $2,000. In addition, you may be required to install an ignition interlock device in your vehicle and attend a DWI Intervention program.

3rd DWI Charge / Offense – The fine associated with a third or subsequent offense in Texas can be up to $10,000. In addition, offenders may be sentenced to 2 to 10 years in state prison, and have their license suspended for up to 2 years. There may also be a surcharge of up to $2,000 assessed per year for three years. Finally, there may also be a requirement that you install an ignition interlock device in your vehicle and also that you participate in a DWI Intervention program.

DWI Penalties: Minors

For the purposes of driving while intoxicated (DWI) and other laws involving alcohol, Texas law defines anyone under the age of 21 as a “minor.” Minors are prohibited from driving a motor vehicle with any detectable amount of alcohol in their systems. For a first offense, minors who are caught driving after drinking any alcohol face fines, probation, loss of their right to drive, mandatory enrollment in an alcohol education class, community service, and the installation of an ignition interlock device. These penalties increase significantly with each subsequent offense, and in many cases can include jail time.

Probation for DWI in Texas

Probation is an agreement between you and the judge in which the judge agrees not to impose a jail sentence in exchange for you agreeing to do (or not do) certain things during a set amount of time. This set amount of time is known as the probationary period. For a first offense, the probationary period can extend up to two years.

In most cases, if you have no prior convictions, then a judge will suspend your entire jail sentence and place you on probation for a minimum of six months. Typically, a probation period is one year in length. During probation, you are required to do the following:

  • Report to the probation officer assigned to you;

  • Pay fines, court costs, and monthly probation fees.

    • Probation fees are usually around $50 per month that you are on probation;

    • Fines, court costs, and probation fees, do not include driver license surcharges. Driver license surcharges are paid to MSB, a third-party company contracted to process payments on behalf of DPS. See the License Surcharges page for more information.

  • Perform 24 to 80 hours of community service;

  • Maintain a job and support any and all dependents

    • Exceptions for full-time employment can be made on a case-by-case basis if you are a student;

  • Take random urinalysis.

    • You are responsible for paying the cost of the urinalysis. This is usually $10-$20.

  • You may be required to have an ignition interlock device installed on your vehicle.

    • The ignition interlock period is usually between 6 months to 1 year.

    • There is no fee for the installation of the ignition interlock device, however there is a monthly maintenance fee. This varies depending on the installation company and is usually around $75 per month.

  • Complete a drug and alcohol evaluation;

  • Attend a Victim Impact Panel (VIP);

  • Attend a Texas DWI Education class;

First-Time DWI Offenders sentenced to Probation will be required to complete a 12-hour DWI Education Class within 180 days of sentencing.

Criminal Code of Procedure Art. 42A.403. EDUCATIONAL PROGRAM FOR CERTAIN INTOXICATION OFFENDERS (a) A judge who places on community supervision a defendant convicted of an offense under Sections 49.04-49.08, Penal Code, shall require as a condition of community supervision that the defendant attend and successfully complete, before the 181st day after the date community supervision is granted, an educational program designed to rehabilitate persons who have driven while intoxicated that is jointly approved by the Texas Department of Licensing & Regulation.

In addition to the things that you must do while on probabation, there are also some things that you must not do. These include:

  • Drink alcohol or take drugs;

  • Visit bars, clubs, or lounges;

  • Violate the law;

  • Socialize with persons of questionable moral character; and

  • Refrain from committing a crime or associating with criminals.

If you receive a second DWI conviction, then your chances of having your entire jail sentence reduced in place of probation are much more minimal. Instead, there is a minimum 72-hour continuous confinement required for a second DWI conviction. The judge may, however, suspend the rest of your sentence and place you on probation. For a third DWI conviction, which is considered to be a felony conviction, you must spend 10 days in county jail. After that, you may receive a probation sentence that requires you to perform community service and participate in a substance abuse program in lieu of a jail sentence. 

Repeat Offenders will be required to complete a DWI Intervention Class.

Criminal Code of Procedure Art. 42A.404. EDUCATIONAL PROGRAM FOR CERTAIN REPEAT INTOXICATION OFFENDERS (a) The judge shall require a defendant who is punished under Section 49.09, Penal Code, to attend and successfully complete as a condition of community supervision an educational program for repeat offenders that is approved by the Texas Department of Licensing and Regulation.

Above intoxication manslaughter and intoxication assault are briefly discussed. If you obtain probation for intoxication manslaughter, then you will be required to serve a community service sentence ranging between 240 and 800 hours; serve a minimum jail sentence of 120 days; and participate in substance abuse/alcohol programs whether they be in-patient or outpatient. The penalties are similar with an intoxication assault probation—you will have to serve community service, serve in county jail for a minimum of 30 days, and participate in a substance abuse program.