Legally reviewed by Chris Jeansonne, Criminal Defense Attorney, Dunham & Jones, Attorneys at Law, P.C. · Last reviewed: October 8, 2026
Being arrested for a first DWI in Texas can be frightening, particularly for someone who has never been in trouble with the law before. It is also easy to underestimate the situation. A first DWI is often a misdemeanor, but the circumstances surrounding the arrest can significantly change the potential penalties and consequences.
A blood alcohol concentration of 0.15 or higher can increase the charge. An open container can affect the minimum jail term. A child passenger can turn a first DWI into a felony. A driver may also face a separate driver’s license suspension before the criminal case is resolved.
Even seemingly small facts can matter, including where an open bottle was stored, whether the car was running when police arrived, whether the alleged intoxication involved alcohol or prescription medication, and what police found inside the vehicle.
Understanding those differences is important when facing a first DWI charge in Texas.
What Is Considered DWI in Texas?
Under Texas Penal Code Section 49.04, a person commits DWI when the person is intoxicated while operating a motor vehicle in a public place.
Texas law defines “intoxicated” in two ways. A person can be considered intoxicated by having an alcohol concentration of 0.08 or higher, or by not having the normal use of mental or physical faculties because of alcohol, a controlled substance, a drug, a dangerous drug, or combination of substances.
That distinction matters because a Texas DWI is not necessarily an alcohol offense.
Someone may potentially face DWI allegations involving marijuana or cannabis products, illegal drugs, prescription medication, alcohol combined with medication, or another intoxicating substance. A valid prescription does not automatically prevent a DWI charge if prosecutors allege that the medication caused the person to lose the normal use of their mental or physical faculties.
It also means that a BAC below 0.08 does not automatically rule out DWI. The state may attempt to prove intoxication through the loss-of-normal-faculties definition instead.
What Are the Penalties for a First DWI in Texas?
An ordinary first DWI under Section 49.04 is a Class B misdemeanor. The potential criminal penalties include up to 180 days in jail and a fine of up to $2,000. Texas law also provides for a minimum confinement term of 72 hours.
In addition to the criminal fine, Texas imposes a separate $3,000 state fine when a person is convicted of DWI and has not had another qualifying DWI conviction during the preceding 36 months. For someone facing a true first DWI, this means the two statutory fines could total as much as $5,000.
These amounts do not include other potential expenses associated with a DWI, such as court costs, attorney fees, license reinstatement costs, increased insurance premiums, ignition interlock expenses, or required education programs.
BAC of 0.15 or Higher
If an analysis of the defendant’s blood, breath, or urine shows an alcohol concentration of 0.15 or higher at the time the specimen is analyzed, the offense becomes a Class A misdemeanor.
A Class A misdemeanor can carry up to one year in jail and a fine of up to $4,000. Texas also imposes a $6,000 additional traffic fine when the DWI involves an alcohol concentration of 0.15 or higher.
The 0.15 threshold can matter in other ways as well. For example, Texas law generally excludes a DWI involving an alcohol concentration of 0.15 or higher from eligibility for DWI deferred adjudication.
Can a First DWI in Texas Be a Felony?
Yes. Having no previous DWI convictions does not guarantee that the charge will be a misdemeanor.
DWI with a passenger younger than 15 is a state jail felony under Texas Penal Code Section 49.045.
Texas also added another important first-offense felony provision in 2025. A DWI under Section 49.04 is now a state jail felony if the person was operating the vehicle in a school crossing zone while the reduced speed limit applied.
More serious circumstances, such as causing serious bodily injury or death while intoxicated, can result in intoxication assault or intoxication manslaughter charges regardless of whether the person has ever previously been convicted of DWI.
Does an Open Container Make a First DWI Worse?
Potentially.
If the person charged with DWI had an open container of alcohol in their immediate possession, Section 49.04 increases the statutory minimum confinement term from 72 hours to six days.
But “open container” means more than an open beer in the cup holder.
Texas defines an open container as a bottle, can, or other receptacle containing any amount of alcohol that is open, has been opened, has a broken seal, or has had some of its contents removed.
That means putting the cork back into an unfinished bottle of wine does not necessarily make it “closed” again under Texas law.
Location matters, too. Texas’s separate open-container law generally applies to open containers in the passenger area of a vehicle on a public highway. The statutory passenger area does not include the trunk, a locked glove compartment or similar locked storage container, or, in a vehicle without a trunk, the area behind the last upright seat.
Consider someone moving into a new house. They have a box containing partially used bottles from the old liquor cabinet. Those bottles have previously been opened. A box in the trunk presents a different legal situation from the same box sitting on the back seat.
Similarly, an unfinished restaurant bottle of wine placed in a takeout bag on the passenger-side floor does not become legally unopened simply because it is inside a bag.
Possession also matters. An open beer held by a passenger does not automatically mean that the driver possessed it, and the six-day DWI minimum specifically refers to an open container in the DWI defendant’s “immediate possession.”
Texas also provides an exception to its open-container prohibition for passengers in vehicles designed, maintained, or used primarily to transport people for compensation, including buses, taxicabs, and limousines. The language can be relevant to modern rideshare situations. Calling for a ride instead of driving while intoxicated remains the safer choice.
A First DWI Can Create a Separate Driver’s License Case
One of the most important things to understand after a Texas DWI arrest is that the criminal case and the driver’s license case are separate proceedings.
Texas’s Administrative License Revocation, or ALR, process allows DPS to suspend driving privileges after certain test failures or refusals regardless of whether the person has been convicted of DWI.
A person who receives the applicable suspension notice generally has only 15 calendar days after being served to request an ALR hearing. When a person consents to a blood draw and DPS later receives a result over the legal limit, different notice procedures can apply, including a 20-day period after the suspension notice is mailed.
Missing the deadline can result in the suspension taking effect without the person receiving the opportunity to contest it at an ALR hearing. Because this deadline can arrive long before the criminal DWI case is resolved, it is important to contact an experienced Texas DWI defense attorney as soon as possible after an arrest. An attorney can help determine when the ALR deadline expires, request a hearing on the driver’s behalf, and begin protecting both the driver’s license and the criminal case while important evidence is still available.
For an adult with no relevant prior enforcement contact, an ALR suspension can generally last 90 days after a failed test. A first refusal can generally produce a 180-day suspension.
A person whose license is suspended may be eligible to seek an occupational driver’s license allowing limited driving for authorized purposes. Obtaining one can require a court order, an SR-22 certificate, and additional paperwork with DPS.
When the suspension period ends, the driver must still satisfy applicable DPS reinstatement requirements and fees before assuming that driving privileges have been restored.
Driving anyway can make the situation worse. Operating a vehicle while driving privileges are suspended can lead to a separate Driving While License Invalid charge and additional licensing consequences. It does not simply get folded into the original DWI.
Arrested for a first DWI in Texas? The ALR license deadline runs fast. Call Dunham & Jones 24/7 at 800-499-8455 for a free consultation.
Can a First DWI Affect Car Insurance?
Yes.
A DWI conviction can require a driver to obtain an SR-22 financial responsibility certificate from an authorized insurer. Texas DPS states that an SR-22 required following a DWI conviction must generally be maintained for two years from the conviction date.
An SR-22 is proof of required financial responsibility rather than a special type of insurance policy, but the underlying DWI can affect insurance pricing and availability. The Texas Department of Insurance also identifies a DWI conviction as one reason an insurer may decide not to renew an auto policy.
If an SR-22 is required and the coverage lapses, the insurer reports the lapse to DPS, potentially creating additional driver’s license problems.
For many defendants, the long-term cost of a DWI therefore extends beyond the fine imposed in court.
Can You Get a DWI While Sleeping in Your Car?
Potentially, but the facts matter.
Texas’s DWI statute does not require prosecutors to prove that an officer personally watched someone driving down the road. The statute requires proof that the person was intoxicated while operating a motor vehicle in a public place.
Someone found unconscious behind the steering wheel of a running vehicle presents a very different factual situation from someone sleeping in the back seat with the vehicle turned off.
Keys in an ignition, the location of the keys, whether the engine was running, where the person was sitting, where the vehicle was located, and evidence showing how the vehicle arrived there can all become relevant.
There is no simple rule that sleeping in the back seat automatically prevents a DWI charge. Prosecutors may attempt to prove earlier operation through circumstantial evidence.
Still, a person found asleep in the back seat of a stationary vehicle with the engine off and no evidence that they operated the vehicle while intoxicated presents a materially different case from someone found unconscious behind the wheel of a running car.
Choosing not to drive after realizing you are impaired is always the safer decision. Sleeping in a vehicle, however, should not be treated as an automatic legal safe harbor.
What If There Is a Legal Firearm in the Vehicle?
This is a particularly relevant issue in Texas.
Simply having a legally possessed firearm in the vehicle does not automatically create a second criminal charge because the driver is intoxicated. Texas weapons law contains important exceptions and distinctions involving vehicle possession and licensed carry.
However, another provision of Texas Penal Code Section 46.02 can prohibit carrying a handgun in a vehicle while the person is engaged in criminal activity beyond an ordinary Class C traffic offense. Because DWI is generally at least a Class B misdemeanor, the combination of a handgun and an alleged DWI can create an additional issue that should be evaluated by a defense attorney.
A DWI can also have consequences for a Texas License to Carry. DPS states that a Class A or Class B misdemeanor DWI conviction can make a person ineligible for an LTC for five years, and special rules apply to probation and deferred adjudication when determining LTC eligibility.
Does a DWI Arrest Let Police Search the Entire Car?
Not automatically.
A lawful DWI arrest does not, by itself, give police unlimited authority to search every part of a vehicle. However, events during the stop may establish another lawful basis for a search.
For example, officers may observe suspected contraband in plain view or develop independent probable cause to believe the vehicle contains evidence or contraband. Under the automobile exception, probable cause can permit a warrantless vehicle search, with the permissible scope depending on what officers have probable cause to search for and where that item could reasonably be located.
A DWI arrest can also lead to a vehicle being lawfully impounded. Police may conduct an inventory of a lawfully impounded vehicle pursuant to standardized procedures. Although an inventory search is not supposed to be a pretext for investigating unrelated crimes, contraband lawfully discovered during an inventory can create an entirely new criminal problem.
Consent can provide another basis for a vehicle search.
If a DWI arrest produces additional charges because police discovered drugs, a weapon, or other alleged contraband in the vehicle, the circumstances of that search should be reviewed carefully. Where the item was located, what officers knew before searching, whether consent was given, and why the vehicle was impounded can all matter.
Does the Texas County Where the DWI Happened Matter?
Texas DWI law does not change when someone crosses a county line. The same state statutes establish the offense and punishment ranges.
The way a case is handled locally, however, can differ.
Texas counties may have different prosecutorial policies, diversion programs, eligibility requirements, court procedures, and approaches to resolving first-offense DWI cases. Some jurisdictions offer pretrial diversion opportunities to qualifying defendants, while others may have different programs or requirements.
The county therefore does not change what Texas law says a DWI is, but it can affect what options are realistically available in a particular case. This is one reason local experience matters when choosing a DWI defense attorney. An attorney familiar with the county where the arrest occurred can understand not only the statewide DWI laws, but also the local prosecutors, courts, procedures, and programs that may affect how a first DWI case is handled.
Can You Get Deferred Adjudication for a First DWI in Texas?
Some defendants can.
Texas law permits deferred adjudication for certain DWI charges, although important exclusions apply. For example, a person charged with DWI is not eligible under this provision if the person’s alcohol concentration was 0.15 or higher or if the person held a commercial driver’s license or commercial learner’s permit at the time of the offense.
Deferred adjudication should not be confused with making the DWI disappear for every legal purpose.
Texas Penal Code Section 49.09 provides that a person placed on deferred adjudication for DWI is considered to have been previously convicted for purposes of enhancing a later intoxication offense.
That makes it important to understand both the immediate and future consequences before accepting a plea agreement.
What Should You Do After a First DWI Arrest in Texas?
A first DWI charge should not be ignored simply because the defendant has no criminal record.
Pay close attention to the driver’s license paperwork because the deadline to challenge an ALR suspension can arrive long before the criminal case is resolved. Preserve information that may matter, including receipts, photographs, passenger information, medications, communications, and details about what happened before and during the traffic stop.
Follow all bond conditions and driving restrictions. Do not drive on a suspended license simply because you need to get to work. An occupational license is available in most circumstances.
Most importantly, have the evidence and circumstances reviewed by a Texas DWI defense attorney before assuming that a breath test, blood result, or arrest automatically determines the outcome.
A first DWI can involve questions about whether the traffic stop was lawful, whether the state can prove intoxication, whether the defendant was actually operating the vehicle, whether chemical testing was reliable, whether a vehicle search was lawful, and whether local diversion or deferred adjudication options are available.
The fact that this is your first DWI does not mean the consequences are insignificant. It also does not mean the state’s allegations cannot be challenged.
Dunham & Jones has represented people facing DWI and other criminal charges throughout Texas. If you have been arrested for a first DWI, speaking with an experienced Texas DWI defense attorney quickly can help you understand the criminal case, protect your driver’s license, and determine what defenses or resolutions may be available based on the specific facts of your arrest.
Frequently Asked Questions About a First DWI in Texas
Frequently asked questions about a first DWI in Texas.
Is a first DWI in Texas a felony or misdemeanor?
Will I go to jail for my first DWI in Texas?
Can I get a DWI in Texas if my BAC is under 0.08?
How long will my license be suspended after a first DWI in Texas?
Can I drive to work if my license is suspended after a DWI?
Can you get a DWI in Texas for sleeping in your car while drunk?
Can a first DWI in Texas be dismissed?
This article provides general information and is not legal advice. Every case depends on its particular facts, charges, criminal history, court orders, and applicable law.
