A Former Prosecutor And Criminal Law Expert

When is a DWI a Felony?

A DWI is a very serious offense that has the potential to change someone’s life. Whether or not there has been actual harm committed, the bottom line is that the potential for harm was great; thus, a charge will be filed in Texas. However, the difference between whether the offense that was committed will be classified as a felony or a misdemeanor relies on multiple factors. What follows is an examination of these differences and the factors that may determine which type of charge is assigned.

For a DWI in Houston, TX the weight of the charges is going to be based on several factors. The designation of a felony or misdemeanor offense is by no means arbitrary and is spelled out in the Texas Penal Code. These factors include the defendant’s prior criminal history with DWI, the presence of injuries, and the result of any breath or blood alcohol result.


The defendant’s prior criminal history in terms of DWI activity will play heavily into the severity of the charge that is filed. While a misdemeanor can still result in jail time, first time offenses rarely see excessive jail time. Repeat misdemeanors can, however, result in a loss of the defendant’s driver’s license and possibly a felony offense. Felony charges are typically filed if the State can establish that the person has been convicted two or more times of DWI in Texas or any other state. Felonies will always carry heavier fines, penalties and even prison time.

Result Of Breath Or Blood Alcohol Tests

While a person might think that being compliant and agreeing to submit to a breath or blood alcohol test might help with their case, the opposite may be true. If the results of a person’s breath or blood alcohol test demonstrates that their result was greater than .15g/dl, then the State may seek to reclassify the offense as a Class A misdemeanor as opposed to a lower Class B misdemeanor. Although a person should always be respectful to law enforcement, a person should not consent to giving a specimen of breath or blood if he fears that the results of such a test would not be favorable. Of course, the sooner the services of an experienced criminal attorney are secured, the sooner the defendant’s actions can be guided by expert guidance and counsel.


While DWI is dangerous no matter what the circumstances may be, the severity of any injuries can be a deciding factor in what type of charges are ultimately filed. If it is a first offense and no damage to person or property occurred, it is likely that only misdemeanor charges will be sought. However, if there is an injury caused to another person, more serious charges may result. If a person causes serious bodily injury to another while committing the offense of driving while intoxicated, he can be charged with Intoxication Assault, a third degree felony. If a person causes the death of another while committing a DWI, he can be charged with Intoxication Manslaughter, a second degree felony.

At the end of the day, criminal charges are determined on a case by case basis. A simple misdemeanor can result if circumstances are right, but prior criminal history and/or injuries can result in more serious felony charges. For more specific insight, consult a defense attorney. A criminal defense lawyer will be best equipped to protect an individual’s rights in court.

If you find yourself facing a DWI charge in Houston, contact the Downey Law Firm and enlist the services of a top Houston criminal attorney.