Transportation Code · §49.04

Driving While Intoxicated (DWI)

Q: First-offense DWI is a Class B misdemeanor with a mandatory minimum of how many hours' confinement?

72 hours (6 days minimum if open container) First-offense DWI: Class B; minimum 72 hours confinement; minimum 6 days if an open container of alcohol was in the immediate possession of the operator.

Q: DWI with BAC 0.15 or more at the time of analysis is what level of offense (first offense)?

Class A misdemeanor DWI with BAC 0.15 or higher at the time of analysis is a Class A misdemeanor — even on a first offense.

Intoxicated while operating a motor vehicle in a public place. Intoxicated = (A) loss of normal use of mental or physical faculties due to alcohol/drugs/combination, OR (B) BAC 0.08 or more.

To prove this offense, the State must establish each of the following elements: DWI 1st: Class B misdemeanor; Mandatory minimum 72 hours county jail; 6-day minimum if open container in immediate possession of operator.

The base classification is Class B misdemeanor (1st offense), with possible enhancements depending on the conduct, victim, location, or prior history of the actor.

Elements you must prove

DWI 1st: Class B misdemeanor
Mandatory minimum 72 hours county jail
6-day minimum if open container in immediate possession of operator

Texas Law — Charge Details

Class B Misd. → 3rd Degree Felony

Offense

Driving While Intoxicated (DWI)

Statute

Tex. Penal Code §49.04

Classification

Class B misdemeanor (1st offense)

Intoxicated while operating a motor vehicle in a public place. Intoxicated = (A) loss of normal use of mental or physical faculties due to alcohol/drugs/combination, OR (B) BAC 0.08 or more.

Potential Penalty Enhancements

If this condition applies…	Charge escalates to	Statute
BAC 0.15 or more at time of analysis	Class A misdemeanor	§49.04(d)
Open container in operator's immediate possession	Class B with 6-day jail minimum	§49.04(c)
1 prior intoxication-related conviction (DWI 2nd)	Class A misdemeanor	§49.09(a)
2+ prior intoxication-related convictions (DWI 3rd+)	3rd degree felony	§49.09(b)

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Worked examples

Worked example 1

First-offense DWI is a Class B misdemeanor with a mandatory minimum of how many hours' confinement?

24 hours
48 hours
72 hours (6 days minimum if open container) Correct
120 hours

Why: First-offense DWI: Class B; minimum 72 hours confinement; minimum 6 days if an open container of alcohol was in the immediate possession of the operator.

Statute: Tex. Penal Code §49.04

Worked example 2

DWI with BAC 0.15 or more at the time of analysis is what level of offense (first offense)?

Class B misdemeanor
Class A misdemeanor Correct
State jail felony
3rd degree felony

Why: DWI with BAC 0.15 or higher at the time of analysis is a Class A misdemeanor — even on a first offense.

Statute: Tex. Penal Code §49.04(d)

Worked example 3

A driver under 21 with any detectable amount of alcohol in his system while operating a motor vehicle in a public place commits:

DWI
Driving Under the Influence (DUI) by a minor — Tex. Alc. Bev. Code §106.041 — Class C misdemeanor for the alcohol consumption offense (though if intoxicated, full DWI charge applies) Correct
Public Intoxication only
No offense

Why: DUI by a minor (under 21) under §106.041 — operating with any detectable amount of alcohol — is a separate offense from DWI. If the minor is intoxicated under §49.01, the full DWI charge applies.

Statute: Tex. Alc. Bev. Code §106.041 (Driving Under the Influence by Minor); Tex. Penal Code §49.04 (DWI)

Statutory definitions for this topic

Operating Tex. Penal Code §49.04; Texas case law: Construed broadly under Texas case law. Movement of the vehicle is not required; circumstantial evidence — driver alone in driver's seat, running engine, keys in ignition, recent crash — can support a finding of operation.