Some Common DWI Enhancements in Texas

DWI Enhancements in TexasProsecutors always bring the most aggressive charges that the facts can possibly support, mostly to obtain leverage during pretrial settlement negotiations. So, it is very common for DWI charges to include one or more enhancements. Here are some of the ones we see most frequently.

Open Container

This infraction is technically a separate offense and not a DWI enhancement. Texas Penal Code 49.031 is a Class C misdemeanor (a traffic ticket). Under subsection (b), it is illegal to:

  • Knowingly possess
  • An open container
  • In a passenger area
  • While the vehicle “is being operated or is stopped or parked.”

Possession is not the same as proximity. The passenger could have an open container, but the driver arguably does not possess that container in a legal sense. Curiously, this statute clearly states that the vehicle must be in motion for the defendant to “operate” it. Therefore, it would appear that the vehicle must be moving for the defendant to be convicted of DWI, because 49.04 makes it illegal to “operate” a motor vehicle while intoxicated.

DWI Child Passenger

49.045 is a little more straightforward. If the defendant is convicted of DWI and there was a child under 15 anywhere in the vehicle, the offense is a state jail felony instead of a misdemeanor. The best way to beat the enhancement is to attack the elements of a DWI.

DWI Collision

49.07 makes a misdemeanor DWI a third degree felony if the defendant also caused an injury “that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ;” if the victim dies, the offense is a second degree felony.

Many typical car crash injuries, such as whiplash and broken bones, probably do not meet the “serious injury” threshold. Moreover, in most DWI collision cases, a non-police witness must place the defendant behind the wheel at the time of the crash. Sometimes, such a witness either is not available or cannot provide conclusive testimony.

Subsequent DWI

A prior DWI may be the most common enhancement. The penalties expand with each prior conviction up to three:

  • First DWI is a Class B misdemeanor (Class A if the defendant’s BAC was above .15),
  • Second DWI is a Class A misdemeanor,
  • Third DWI is a third degree felony (second degree felony if the defendant has any prior felonies).

Texas has a ten-year lookback period in these cases, and it’s a little uncertain whether the arrest date or the conviction date is the starting point for the ten-year count.

Connect With an Assertive Attorney

DWI enhancements make a bad situation worse. For a free consultation with an experienced criminal defense lawyer in Houston, contact the Law Office of Jim Medley.

Written by

Jim Medley

For more than 20 years, attorney Jim Medley has perfected his craft in the field of criminal justice. He garnered extensive knowledge during his 12 years as a police officer in Texas, and applied that knowledge during his time as a professor of criminal law and criminal justice. Mr. Medley brings a unique skill set to the table, and as a result, he would be an invaluable asset in the courtroom should you need DWI or criminal defense in Houston.