First Offense DWI
First Offense DWI in Texas
A first DWI in Texas is normally a Class B misdemeanor, and the phrase does a lot of hiding. It carries a mandatory minimum jail term, a separate state fine on top of the criminal one, and a license suspension that runs on its own track.
It is also the offense level where the most is still available. Deferred adjudication, nondisclosure and, in some counties, diversion are all on the table at a first offense and mostly gone afterward.
Free Consultation
Call 512-469-6056
Austin DWI Defense Attorney
Ken Gibson
More than 6,000 DWI cases since 1998.
6,000+
DWI Cases Handled
Since 1998
Practicing DWI Defense
DWI Only
Defense Focus
What a first DWI carries
Penal Code section 49.04 makes a first DWI a Class B misdemeanor with a minimum term of confinement of 72 hours. The Class B range runs to 180 days in county jail and a fine of up to $2,000 under section 12.22.
Three things change that baseline, and any of them can apply to a first offense:
Where a first DWI stops being an ordinary Class B
| What applies | Effect on a first offense |
|---|---|
| An open container within reach, 49.04(c) | Minimum confinement rises from 72 hours to 6 days. Still Class B. |
| Alcohol concentration 0.15 or higher, 49.04(d) | Becomes a Class A misdemeanor: up to 1 year and a $4,000 fine. |
| An active school crossing zone, 49.04(e) | State jail felony since September 1, 2025. No injury required. |
| A passenger younger than 15, 49.045 | State jail felony, first offense, no injury required. |
The 0.15 threshold is written as the concentration shown at the time the analysis was performed, not at the time of driving. Those are different moments and the gap between them is where testing evidence gets contested.
How the evidence is evaluated
No single observation or document answers whether the State can prove intoxication under Penal Code section 49.01(2). Dash-camera and body-camera video can be compared with the officer's stated observations and the conditions surrounding any field sobriety tests. Breath or blood-test records establish a separate specimen timeline, while the arrest report, statutory-warning forms, and booking records show how the investigation progressed. Reading those materials together can reveal whether the accounts support one another or conflict at important points.
For the complete loss-of-faculties and alcohol-concentration definitions, see what counts as intoxicated in Texas.
The school-crossing-zone guide gives the longer treatment of why the provision applies only in a designated school crossing zone while the reduced speed limit is in effect, and the proof behind that felony row.
The state fine most people have not heard of
On top of the criminal fine, Transportation Code section 709.001 imposes a separate state fine on final conviction: $3,000 for a first conviction within 36 months. It is a single fine, not an annual charge, and it is assessed by the court rather than billed by DPS.
This is the single most misreported item in Texas DWI. Pages still describe annual DPS surcharges of $1,000 to $2,000 a year for three years. That was the Driver Responsibility Program, and House Bill 2048 repealed it effective September 1, 2019. Chapter 708 no longer exists.
Section 709.001(c) and (d) also require the court to waive the fine in full on a finding of indigency, proven by income at or below 125 percent of the federal poverty guidelines or by participation in SNAP, Medicaid, WIC, CHIP or free school lunch. The statute says the court shall waive it. That is mandatory, not discretionary.
What happens to your license
Two separate suspensions can arise from one arrest. The administrative one runs first: 90 days on a failed test for an adult with no prior enforcement contact in ten years, or 180 days on a refusal. That is decided in the ALR process on a 15 day clock.
A conviction carries its own suspension under section 521.344(a), from 90 days to a year on a first offense. For a genuine first offender, section 521.344(c) allows credit for an ALR refusal suspension already served against the conviction suspension.
There is also a route that avoids the conviction based suspension entirely. Under section 521.344(d), first offender probation with completion of a DWI education program generally avoids it. The catch is in subsections (e) and (f) read with article 42A.406(c): fail to finish that program within 180 days and the license is revoked instead.
The 180 day trap
The DWI education requirement is the condition people most often let slip, because it feels administrative next to everything else. Missing it converts a suspension you had avoided into a revocation.
Driving in the meantime
An occupational license restores limited driving, and the old statutory waiting periods were repealed in 2023.
Whether a first DWI has to stay on your record
This is where a first offense is genuinely different from a second, and where decisions made early matter most.
Deferred adjudication became available for a first section 49.04 offense under article 42A.102(b), but not for everyone. It is unavailable if the alcohol concentration was 0.15 or higher at the time of the offense, and unavailable to a CDL or CLP holder. Note the timing standard there is at the time of the offense, which is not the same measure the 49.04(d) charge level uses.
Successful discharge from deferred opens a nondisclosure after a two year wait under section 411.0726, provided the judge did not enter a finding against future nondisclosure and the offense did not involve a collision with another person, including your own passenger.
One thing deferred does not do is disappear. Under section 49.09(g) a deferred adjudication for DWI counts as a conviction for enhancement purposes on any future case, permanently. A second arrest years later is charged as a second offense.
Where a county runs a pretrial intervention program under Government Code section 76.011, completion produces a dismissal that is expunction eligible under article 55A.053(a)(2)(C). Travis County runs one with no program fee. More on both routes on my clearing a DWI page.
The Texas DWI community-supervision guide explains common conditions, completion, violations, revocation, and adjudication.
A separate guide explains why a DWI reduction to obstructing highway or other passageway is not a dismissal and why availability depends on the evidence and county.
Related pages
The 15 day ALR deadline
The civil case against your license, and why a timely request stays the suspension.
DWI with a child passenger
A state jail felony on a first offense, with no injury required.
Clearing a DWI
Expunction destroys a record. Which dismissals actually qualify.
First offense DWI questions
Will I actually go to jail for a first DWI?
Section 49.04 sets a minimum term of confinement of 72 hours for a first offense, and six days where an open container was within reach. How that minimum is satisfied depends on how the case resolves, which is a conversation to have once the evidence has been reviewed.
Are the DPS surcharges still charged?
No. The Driver Responsibility Program was repealed by House Bill 2048 effective September 1, 2019. What exists now is a single state fine of $3,000 under section 709.001 on a first conviction within 36 months, and the court must waive it entirely on a finding of indigency.
Can a first DWI be kept off my record?
Sometimes. Deferred adjudication is available for a first section 49.04 offense unless the concentration was 0.15 or higher at the time of the offense or you hold a CDL, and successful discharge can lead to nondisclosure after two years. Where a county runs a pretrial intervention program, completion can produce an expunction eligible dismissal.
Is a first DWI ever a felony?
Yes, in two situations that need no injury and no prior. A passenger under 15 makes it a state jail felony under section 49.045, and since September 1, 2025 so does a DWI in an active school crossing zone under section 49.04(e).
Does deferred adjudication mean it never counts again?
No, and this catches people out. Under section 49.09(g) a DWI deferred counts as a conviction for enhancement forever. An arrest ten years later is charged as a second offense.
What is the first thing I should do?
Deal with the license. The request to contest the administrative suspension is due within 15 days of notice and runs whether or not the criminal case has done anything.