DWI Defense

Driving while intoxicated (DWI) is statutorily defined by Texas Penal Code § 49.04. This law makes it illegal if someone is “intoxicated while operating a motor vehicle in a public place.” Generally, this offense is a Class B misdemeanor with a minimum jail sentence of 72 hours. If the driver has an open container of alcohol in the vehicle at the time of arrest, it will be considered a Class B misdemeanor with a minimum jail sentence of 6 days.

If a chemical analysis proves that the defendant’s blood alcohol level was 0.15 or higher at the time of arrest, the driver will be charged with a Class A misdemeanor. The penalties for a Class A misdemeanor are set forth by Texas Penal Code § 12.21. In Texas, a Class A misdemeanor is punishable by up to $4,000 in fines and one year in jail.

Austin DWI Lawyer | Travis County, TX

If you are facing DWI accusations, contact [firm]. Jackson F. Gorski at [firm] is a skilled criminal defense lawyer who has years of experience when it comes to handling hit-and-run accidents throughout the State of Texas. Our law firm has successfully managed hundreds of hit-and-run accident cases over the years, and we know that we can help your case too.

Call [phone] to arrange a free consultation with [firm] today. Mr. Gorski and his legal team accepts DWI cases in Austin and Georgetown, TX.


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Information Center


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What Is The Difference Between DUI And DWI?

DWI stands for driving while intoxicated, while DUI stands for driving under the influence. The distinction between the two charges can be unclear. DUI charges allow for someone to face penalties for driving for any amount of an intoxicating substance, while DWI requires that the driver has reached a certain level of intoxication.


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Types of DWI Offenses in Texas

The following are some of the most common DWI charges found in the Texas Penal Code:

  • DWI with Child Passenger (Texas Penal Code § 49.045): DWI with a child passenger charges come with the same elements as a regular DWI. However, there is an added requirement of having a passenger under 15 in the vehicle. Instead of being considered a misdemeanor, this charge is a state jail felony in Texas. A state jail felony is punishable in Texas by up to $10,000 in fines and up to 2 years in state jail. If the driver has certain previous felony convictions, it will be charged as a third-degree felony, punishable by 2 to 10 years in prison and up to $10,000 in fines.
  • 1st DWI Offense (Texas Penal Code § 49.04): A person can be charged with 1st DWI Offense if he or she is intoxicated while operating a motor vehicle in a public place. It is a Class B misdemeanor which is punishable by up to 180 days’ jail time and up to a $2,000 fine.
  • 2nd DWI Offense  (Texas Penal Code § 49.04): The legal system isn’t so friendly to a person who has been accused of DWI for the second time. A 2nd DWI offense is a Class A misdemeanor, which is a step up from the first conviction. Class A misdemeanors are punishable by up to 1 year in jail and up to a $4,000 fines. You’ll also lose your driver’s license for up to two years.
  • Minor DWI (Texas Penal Code §106.041): The laws for DWI in Texas are slightly different for minors than for those 21 years or older. The legal limit is zero for drivers under 21 years old in Texas. If convicted of a DWI, a minor in Texas will face up to $500 in fines, at least 12 hours of an alcohol education course, at least 90 days of drivers license suspension and an ignition interlock device.
  • Intoxication Assault (Texas Penal Code § 49.07): A person can be arrested for intoxication assault if he or she causes an accident, while being intoxicated, that leads to serious bodily injuries to another person. Depending on the level of bodily harm, intoxication assault can be charged as a third or second degree felony.
  • Intoxication Manslaughter (Texas Penal Code § 49.08): Intoxication manslaughter is a serious crime in Texas. A person can be charged with the offense if he or she causes the death of another person while operating a motor vehicle or any form of machinery while impaired. Machinery can include watercraft, rides in amusement parks, motorcycles and other machine equipment. Intoxication manslaughter is a second degree felony.
  • Open Container (Texas Penal Code §49.031): A person who has any open container in a motor vehicle, whether driving or parked, located on a public highway violates the open container law. In Texas, this offense is classified as a Class C misdemeanor.

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Defenses Against DWI Charges

Lack Of Reasonable Suspicion

A Texas police officer cannot pull someone over for suspicion of DWI if that suspicion is not reasonable. If someone is driving perfectly, a police officer likely will not have adequate reasonable suspicion for a constitutional DWI arrest. But any number of behaviors behind the wheel could give a police officer enough reasonable suspicion to inspect for DWI. One might expect to be pulled over for common driving infractions, like speeding, running a stoplight or stop sign, or driving with expired tags. But when police officers are looking for drunk drivers, they may be stricter about frequent and unconscious driving mistakes like drifting in a lane, failing to signal or use headlights, or aggressive driving. Anyone charged with DWI should review the details of their arrest and incarceration with a criminal defense attorney to determine if there have been any constitutional violations.

Lack Of Probable Cause

Just like a police officer needs to meet a certain standard to pull someone over for suspicion of DWI, they must also meet specific criteria to arrest that person for DWI. This standard is called probable cause. Probable cause is a stricter standard than reasonable suspicion. Many visible signs can give a police officer probable cause to place a driver under arrest for DWI, as well as those that trigger the other senses. Red or watery eyes, slurred speech, failed field sobriety tests, positive chemical tests, and more can all give a police officer adequate probable cause for a DWI arrest.

Chemical Test Errors

There are several reasons a reading on a breath, blood, or urine test could be inaccurate. Certain medical conditions can cause a driver to register alcohol on a breathalyzer test while entirely sober. There also could be issues with the device’s maintenance and storage. The test results could also be improperly maintained and stored. Additionally, there are specific procedures that police officers must follow when conducting chemical testing for DWI purposes. This includes a mandatory waiting period in which the police officer must observe the driver to ensure the driver does not burp, vomit, eat, drink, smoke, or do anything else that could skew the test results. If the police failed to comply with these procedures, this may establish a viable defense against Texas DWI charges.


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Additional Resources

Texas Penal Code § 49.04 – Texas’ law regarding driving while intoxicated. DWIs are a distinct offense from DUI, or driving under the influence.

Texas Penal Code § 12.21 – The penalty guidelines for a Class A misdemeanor conviction in Texas. These guidelines are relevant if someone is arrested for DWI and has a BAL of at least 0.15.

Texas Penal Code § 49.045 – Texas’ law regarding driving while intoxicated with a child passenger in the vehicle.

Texas Penal Code § 12.35 – The penalty guidelines for a state jail felony conviction in Texas. The guidelines apply if someone is convicted of DWI with a child passenger.

Texas Penal Code § 12.34 – The penalty guidelines for a third-degree felony conviction in Texas. These guidelines apply to those convicted of DWI with a child passenger and with certain previous felony convictions.

Texas DMV DUI/DWI Page – This page on the Texas DMV website explains penalty guidelines for DWI convictions in Texas


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Georgetown DWI Defense Lawyer | Williamson County, TX

If you have been arrested for driving while intoxicated (DWI) in Texas, retain legal counsel as soon as possible. Whether you gave a breath sample, refused a breathalyzer test, or even if they took your blood to test its blood alcohol content, it is important that you speak with an attorney to get a better understanding about the next steps in your case, and how best to move forward. Attorney Jackson F. Gorski has the skills and experience to help you effectively fight prosecution.

Call [phone] to arrange a free consultation. Law Office of Jackson F. Gorski has offices in Austin and Georgetown but accepts clients throughout Texas including Travis County, Williamson County, Bell County, Bastrop County, Burnett County, Hays County, Caldwell County, Blanco County, Lee County, Milam County, Hays County, and Caldwell County.


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