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Key takeaways
- Texas calls the offense DWI, not DUI. Penal Code § 49.04. A separate, much lesser offense called DUI exists for drivers under 21.
- Two ways to prove intoxication: a test at 0.08 or more, or loss of the normal use of faculties. The second needs no test result.
- 15 days to request the license hearing. The suspension itself starts on the 40th day after notice.
- A reading of 0.15 or more turns a first offense into a Class A misdemeanor and raises the state traffic fine to $6,000.
- No lookback period. A conviction from any year after 1994 counts as a prior.
- License suspension on conviction is a range set by the judge, not a fixed term.
to request a hearing in writing from the Texas Department of Public Safety in Austin, counted from the day you received the notice of suspension. Transportation Code § 524.031 for a failed test, § 724.041 for a refusal. A request filed in time stays the suspension until an administrative law judge rules. Nothing filed means the suspension begins on the 40th day, with no hearing.
On this page
What the offense actually is
Texas does not have a DUI statute for adult drivers. The offense is driving while intoxicated, and it lives in chapter 49 of the Penal Code, the chapter that deals with intoxication offenses generally — the same chapter covers flying, boating and operating an amusement ride while intoxicated.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.Read § 49.04 at statutes.capitol.texas.gov
(b) Except as provided by Subsections (c), (d), and (e) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Three words in subsection (a) carry most of the weight, and none of them mean quite what a non-lawyer expects.
“Operating” is not defined in the statute and Texas courts have read it broadly. It does not require the car to be moving, and people have been convicted while parked.
“Public place” is broader than a road. It reaches places the public has access to, including many parking lots.
“Intoxicated” is defined, in § 49.01, and the definition is the part most worth reading carefully:
“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.Read § 49.01 at statutes.capitol.texas.gov
The word between the two definitions is or. The state can prove either one. That single word is why refusing a breath test does not end the case: prong (A) is proved with the officer’s observations, the dashboard camera and the roadside tests, and it does not need a number at all.
Note also that alcohol is only one route. Prescription medication taken exactly as prescribed can support a prong (A) case if it cost the driver the normal use of their faculties.
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Enter the ZIP code where the arrest happened and we will start the review from there.
Penalties by offense and BAC
Chapter 49 sets the offense level. Chapter 12 of the Penal Code sets what each level costs. Transportation Code § 521.344 sets the license suspension a court imposes on conviction, and § 709.001 adds a separate state traffic fine on top of everything else. The table pulls all four together.
The shape of the escalation is easier to see than to read off a row. The two charts below plot the five escalation rows from that table — confinement on one scale, money on another, never both on the same axis — and the full statutory matrix, including the two circumstance-based felonies, follows underneath.
The same diagram as a table
| Offense | Level | Jail or prison range | Fine ceiling | State traffic fine |
|---|---|---|---|---|
| First offense | Class B misdemeanor | 72 hours to 180 days | up to $2,000 | $3,000 |
| First offense with an open container | Class B misdemeanor | 6 days to 180 days | up to $2,000 | $3,000 |
| First offense, BAC 0.15 or above | Class A misdemeanor | up to 1 year | up to $4,000 | $6,000 |
| Second offense | Class A misdemeanor | 30 days to 1 year | up to $4,000 | $4,500 if within 36 months |
| Third or subsequent offense | Third degree felony | 2 to 10 years in prison | up to $10,000 | $4,500 if within 36 months |
| Offense | Level | Jail | Fine ceiling | License suspension on conviction | State traffic fine |
|---|---|---|---|---|---|
| First offense | Class B misdemeanor § 49.04(b) | 72 hours to 180 days 72-hour statutory minimum in § 49.04(b); 180-day ceiling from § 12.22 | up to $2,000 § 12.22 | court-set, 90 days to 1 year § 521.344(a)(2)(A) | $3,000 |
| First offense with an open container | Class B misdemeanor § 49.04(c) | 6 days to 180 days the minimum rises from 72 hours to six days | up to $2,000 § 12.22 | court-set, 90 days to 1 year § 521.344(a)(2)(A) | $3,000 |
| First offense, BAC 0.15 or above | Class A misdemeanor § 49.04(d) | up to 1 year no separate statutory minimum in § 49.04(d) | up to $4,000 § 12.21 | court-set, 90 days to 1 year § 521.344(a)(2)(A) | $6,000 |
| Second offense | Class A misdemeanor § 49.09(a) | 30 days to 1 year 30-day statutory minimum in § 49.09(a) | up to $4,000 § 12.21 | court-set, 180 days to 2 years § 521.344(a)(2)(B) | $4,500 if within 36 months |
| Third or subsequent offense | Third degree felony § 49.09(b) | 2 to 10 years in prison § 12.34 range for a third degree felony | up to $10,000 § 12.34 | court-set, 180 days to 2 years § 521.344(a)(2)(B) | $4,500 if within 36 months |
| DWI with a passenger under 15 | State jail felony § 49.045 | 180 days to 2 years in state jail § 12.35(a) range | up to $10,000 § 12.35(b) | court-set, 90 days to 1 year § 521.344(a)(2)(A) | $3,000 |
| DWI in a school crossing zone | State jail felony § 49.04(e) | 180 days to 2 years in state jail § 12.35(a) range | up to $10,000 § 12.35(b) | court-set, 90 days to 1 year § 521.344(a)(2)(A) | $3,000 |
Those are ranges the judge chooses within, not fixed terms. A great many summaries of Texas law print “one year” or “two years” as though the number were automatic. Section 521.344 says “not less than… or more than,” and the difference between the floor and the ceiling is the part a defense lawyer argues about.
A few things the table cannot show:
- The 72-hour minimum is real. A first-offense Class B DWI carries a statutory minimum term of confinement of 72 hours under § 49.04(b). It is routinely satisfied through probation conditions rather than served straight, but it is in the statute.
- An open container changes the floor, not the ceiling. Under § 49.04(c) the offense stays a Class B misdemeanor but the minimum confinement rises from 72 hours to six days.
- The 0.15 enhancement is about the analysis, not the arrest. Section 49.04(d) is triggered when an analysis of a specimen showed 0.15 or more at the time the analysis was performed, which is not the same instant as the stop.
- Court costs and program fees are extra. Nothing in the table covers probation supervision fees, alcohol education, or the cost of an interlock device.
The separate state traffic fine
Texas used to run a Driver Responsibility Program that billed convicted drivers an annual surcharge for years afterwards, and that produced a large population of people whose licenses were suspended for non-payment rather than for driving. The legislature repealed it in 2019 and replaced it with a single fine, payable once, under Transportation Code § 709.001.
| Conviction | Fine | Authority |
|---|---|---|
| First conviction within a 36-month period | $3,000 | § 709.001(b)(1) |
| Second or subsequent conviction within a 36-month period | $4,500 | § 709.001(b)(2) |
| Any conviction where a test showed 0.15 or more | $6,000 | § 709.001(b)(3) |
Subsection (c) matters and is widely overlooked: if the convicting court finds the person indigent, it shall waive all fines and costs imposed under this section. Subsection (d) lists the documentation that can establish indigency, including a recent federal tax return showing household income at or below 125 percent of the applicable poverty guideline. This is a waiver the person has to raise; it does not happen on its own.
Your license: two separate proceedings
This is the part that costs people the most and gets explained the least. A Texas DWI arrest starts two proceedings, run by two different bodies, on two different timetables.
The same diagram as a table
| Step | Criminal case — decided by a court | License case — decided by texas department of public safety |
|---|---|---|
| 1 | Arrest and booking, hour 0 | Notice of suspension served, day 0 |
| 2 | Charge filed by the prosecutor | Day 15: written hearing request due at DPS |
| 3 | First court setting, on a date the court picks | Hearing held if the request was filed — the suspension is stayed until the judge rules |
| 4 | One or more pretrial settings | Suspension starts on day 40 with no hearing |
| 5 | Trial, plea or dismissal | — |
| Clock | Weeks to months. No filing deadline runs against the driver. | Counted in days from the notice, and fixed by statute. |
1. The administrative case, starting immediately
Administrative License Revocation is run by the Department of Public Safety. It begins the moment you either fail a chemical test or refuse one, and it does not wait for a charge, an indictment or a trial. The notice of suspension you are handed sets a suspension that takes effect on the 40th day after you receive it, under § 524.021 for a failed test and § 724.035(c) for a refusal.
Between those two dates sits the only thing you control: a written request for a hearing, which DPS must receive at its Austin headquarters by the 15th day after notice. The hearing is conducted by an administrative law judge employed by the State Office of Administrative Hearings, not by a criminal court judge.
| What happened | No alcohol or drug enforcement contact in the preceding 10 years | One or more such contacts in the preceding 10 years |
|---|---|---|
| Failed the test | 90 days | 1 year |
| Refused the test | 180 days | 2 years |
Refusing costs more license time than failing. That is the design: implied consent under chapter 724 makes the license conditional on agreeing to be tested, and the longer suspension is the price of withdrawing that agreement. Since the state can still obtain a blood warrant, refusal in practice often produces both the blood evidence and the longer suspension.
Section 724.041(c) is the provision worth knowing: a hearing request stays the suspension until the administrative law judge issues a final decision. Dockets being what they are, that is frequently months of continued driving, which is a large part of why the request gets filed even in cases that look unwinnable. The other reason is discovery: the hearing puts the arresting officer under oath, on the record, long before the criminal trial.
2. The criminal case, and a second suspension at the end of it
A conviction carries its own license suspension under Transportation Code § 521.344, separate from the administrative one and set by the court within the ranges in the penalty table above. The court chooses a start date no later than the thirtieth day after conviction.
If a license is suspended, Texas allows an application for an occupational driver’s license — a restricted permit for work, school and essential household duties. Where that application is filed depends on how the suspension arose; when it followed a conviction under chapter 49, it goes to the convicting court rather than to any court of the applicant’s choosing.
Priors, and why Texas has no lookback
Most states have a lookback or washout period: a prior conviction stops counting for enhancement after some number of years. Texas does not have one. Section 49.09 defines the enhancements without any time window, and subsection (d) treats any conviction on or after 1 September 1994 as a final conviction for these purposes. A conviction from 1998 makes a 2026 arrest a second offense.
Texas had a ten-year washout once. It was repealed, and the repeal is the reason so much older material about Texas DWI is wrong on this point.
Enhancement also reaches across state lines and across vehicle types. Section 49.09 counts prior convictions for operating an aircraft, a watercraft or an amusement ride while intoxicated, and it counts an out-of-state conviction whose elements are substantially similar to the Texas offense.
The 89th Legislature amended § 49.09 twice in 2025, adding first degree felony enhancements for intoxication assault or intoxication manslaughter involving a peace officer, a judge, a firefighter or emergency medical services personnel, and for multiple deaths arising from one incident. Those sit above the ordinary first, second and third offense ladder described here.
Under § 49.09(a), one prior intoxication conviction makes the new offense a Class A misdemeanor with a thirty-day minimum. Under § 49.09(b), two priors make it a third degree felony — or one prior, if that prior was an intoxication manslaughter conviction under § 49.08 or its substantial equivalent in another state.
Ignition interlock
Texas imposes interlock requirements at two different stages, and the earlier one surprises people because it arrives before any finding of guilt.
As a condition of bond, before trial
Code of Criminal Procedure article 17.441 requires a magistrate to order an interlock on any vehicle the defendant operates as a condition of release for a second or subsequent DWI, and for any charge under § 49.045 (child passenger), § 49.07 (intoxication assault) or § 49.08 (intoxication manslaughter) including a first one. The magistrate may decline only on a finding that it would not be in the interest of justice, and the device must be installed within thirty days of release.
After conviction
Section 49.09(h) requires the court to order an interlock on all vehicles the person owns or operates when a second or subsequent offense was committed within five years of the date of the previous offense. The person pays for the device, and the requirement runs through the first year after the license suspension ends.
A blood alcohol reading of 0.15 or more is not what triggers the mandatory interlock in Texas. The 0.15 figure drives the Class A enhancement under § 49.04(d), the $6,000 state traffic fine under § 709.001(b)(3), and ineligibility for deferred adjudication. The interlock mandate runs off the offense charged and the timing of any prior, not off the number.
Deferred adjudication, expunction and non-disclosure
Three different mechanisms, three different outcomes, and they are constantly conflated.
- Expunction erases the record. It is available where a case ended without a conviction — a dismissal, an acquittal, or an arrest that never led to a charge. A DWI conviction cannot be expunged in Texas.
- Deferred adjudication means the judge accepts a plea but withholds a finding of guilt while the person completes a supervision period. Texas excluded DWI from deferred adjudication for decades; legislation in 2019 opened it to first-offense DWI on narrow terms, now in Code of Criminal Procedure article 42A.102. A test result of 0.15 or more rules it out.
- An order of non-disclosure seals a record from most private background checks while leaving it visible to law enforcement and to certain licensing bodies. It is a possible endpoint after a successfully completed deferred adjudication, not an automatic one.
Deferred adjudication is not a free pass. A deferred DWI still counts as a prior conviction for enhancement purposes if there is a later offense, which means a second arrest can be charged as a second offense even though the first never produced a conviction.
The statewide picture
The Texas Department of Transportation recorded 1,053 people killed in 2024 in motor vehicle traffic crashes where a driver was under the influence of alcohol — 25.37 percent of the 4,150 traffic fatalities in Texas that year. Of those 1,053, 698 were the impaired drivers themselves, 128 were passengers in their vehicles, 168 were people in other vehicles, and 56 were pedestrians or cyclists.
Source: Texas Department of Transportation, Texas Motor Vehicle Traffic Crash Facts, Calendar Year 2024, compiled from Texas Peace Officer’s Crash Reports processed as of 9 April 2025. DUI breakout (PDF). This is a state agency figure, not a statistic about any attorney.
DWI defense by city
Statutes are statewide. Courts, prosecutors and local practice are not, and the practical shape of a case — where you appear, what the local office will discuss, what diversion exists — is decided at county level.
Dallas, Austin, San Antonio and Fort Worth are in preparation. Each will cover the courts that actually hear the case, not a re-run of this page.
Two proceedings, two clocks. The license one runs faster.
Questions about Texas DWI law
What is the legal alcohol limit in Texas?
0.08 grams of alcohol per 210 liters of breath or per 100 milliliters of blood, under Penal Code section 49.01(2)(B). But that is only one of two ways the state can prove intoxication. The other, in section 49.01(2)(A), is that the driver did not have the normal use of mental or physical faculties because of alcohol, a controlled substance, a drug or a combination. The second route needs no test result at all, which is why a driver who refuses testing can still be convicted.
How long do I have to request an ALR hearing in Texas?
Fifteen days. Transportation Code section 524.031 for a failed test, and section 724.041 for a refusal, both require the Department of Public Safety to receive a written hearing request in Austin by the fifteenth day after you receive notice of suspension. Filing in time stays the suspension until an administrative law judge decides the case. Filing late achieves nothing: the suspension takes effect on the fortieth day after notice.
Does Texas have a lookback period for DWI?
No. Section 49.09(d) treats any conviction on or after 1 September 1994 as a final conviction for enhancement purposes, and there is no time window written into the enhancement provisions. A conviction from decades ago still makes today's case a second or a third offense. The ten-year washout Texas once had was repealed.
What happens if my BAC was 0.15 or higher?
Two separate things, and they are often confused with each other. Under Penal Code section 49.04(d) a first offense becomes a Class A misdemeanor rather than a Class B, which doubles the fine ceiling and raises the jail ceiling to a year. Separately, Transportation Code section 709.001(b)(3) sets the state traffic fine at $6,000 rather than $3,000. A reading of 0.15 or more also makes a person ineligible for deferred adjudication. It is not, by itself, what triggers the mandatory ignition interlock — that is a different rule.
Can a Texas DWI be expunged?
A conviction cannot. A case that ended in dismissal or acquittal can be expunged. Since 2019, a first-offense DWI can be eligible for deferred adjudication under Code of Criminal Procedure article 42A.102, and completing it can open the door to an order of non-disclosure, which seals the record from most private searches without erasing it. Eligibility is narrow, and a test result of 0.15 or more rules deferred adjudication out.
Is an ignition interlock mandatory in Texas?
In several situations, yes, and the earliest of them comes before any conviction. Under Code of Criminal Procedure article 17.441 a magistrate must order an interlock as a condition of bond for a second or subsequent DWI, and for any charge under section 49.045, 49.07 or 49.08 including a first one, unless the magistrate finds it would not be in the interest of justice. After conviction, section 49.09(h) requires an interlock on every vehicle the person operates when a second or subsequent offense was committed within five years of the previous one.
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More for Texas
- Houston and Harris County — which court, which building, and what the first two weeks look like
- DUI vs DWI — why Texas uses both words for two different offenses
- SR-22 insurance after a Texas suspension — the SR-22a rule, the filing fee, and how long Texas holds you to it
- Ignition interlock providers and costs in Texas — in preparation
- Occupational driver’s license: how to apply — in preparation
Every statutory figure on this page was read from the statute text on the date shown at the top. The Texas Legislature meets in odd-numbered years; check the linked official text before relying on a number from any website, including this one.
Sources
- Texas Penal Code § 49.01, definitions — statutes.capitol.texas.gov
- Texas Penal Code § 49.04, driving while intoxicated — statutes.capitol.texas.gov
- Texas Penal Code § 49.045, DWI with child passenger — statutes.capitol.texas.gov
- Texas Penal Code § 49.09, enhanced offenses and penalties — statutes.capitol.texas.gov
- Texas Penal Code ch. 12, punishment ranges by offense class — statutes.capitol.texas.gov
- Texas Transportation Code ch. 524, administrative suspension after a failed test — statutes.capitol.texas.gov
- Texas Transportation Code ch. 724, implied consent and refusal — statutes.capitol.texas.gov
- Texas Transportation Code § 521.344, suspension for offenses involving intoxication — statutes.capitol.texas.gov
- Texas Transportation Code § 709.001, state traffic fine — statutes.capitol.texas.gov
- Texas Code of Criminal Procedure art. 17.441, interlock as a bond condition — statutes.capitol.texas.gov
- Texas Code of Criminal Procedure art. 42A.102, deferred adjudication eligibility — statutes.capitol.texas.gov
- Texas Department of Transportation, Texas Motor Vehicle Traffic Crash Facts, Calendar Year 2024 — summary and DUI breakout