Repeat Offense
Second DWI in Texas
A second DWI is a Class A misdemeanor with a minimum term of confinement of 30 days. That minimum is the headline, but it is not what changes the case most.
What changes is that the options available on a first offense are gone. No deferred adjudication, no sealing afterward, and an interlock that attaches as a condition of release rather than as a sentence.
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
There is no ten year washout in Texas
This is the most persistent myth in Texas DWI and it costs people real money in bad decisions. There is no lookback window for criminal enhancement. A DWI from twenty years ago still makes today's arrest a second offense.
The confusion comes from the fact that ten year windows genuinely do exist in Texas DWI law, just not for enhancement. They appear in the administrative license rules, in interlock condition determinations and in the discretion a judge has over an occupational license. None of those reach the charge level.
A deferred adjudication does not help here either. Under section 49.09(g) a DWI deferred counts as a conviction for enhancement purposes, permanently. Someone who took deferred on a first offense years ago and believed it would not follow them is charged with a second today.
A prior allegation does not establish its own enhancement. The State must connect the person in the new case to a qualifying prior under Penal Code section 49.09. That review may require the earlier charging instrument, judgment, sentence, plea papers, and identifying records rather than a docket summary alone. The exact offense, the disposition, and whether an out-of-state judgment or DWI deferred adjudication falls within the statute should be established from the source records before the prior is treated as proved.
What a second DWI carries
Second offense DWI in Texas
| Second DWI | |
|---|---|
| Offense level | Class A misdemeanor, section 49.09(a) |
| Jail exposure | 30 days minimum, up to 1 year |
| Criminal fine | Up to $4,000 |
| State fine, section 709.001 | $4,500 where the second conviction falls within 36 months |
| License suspension on conviction | 180 days to 2 years, or 1 to 2 years if within 5 years |
| Deferred adjudication | Not available |
| Nondisclosure afterward | Not available |
Two of those rows deserve emphasis. Deferred adjudication under article 42A.102(b) is a first offense mechanism only, so the route that keeps a case off a record is closed. And a second DWI is never sealable, which means the conviction is permanent in a way a first need not be. See nondisclosure for what remains possible.
The Texas DWI community-supervision guide explains possible conditions, completion, alleged violations, and revocation at this offense level.
The interlock, and when it attaches
On a charged second offense an ignition interlock is a mandatory condition of bond under Code of Criminal Procedure article 17.441, installed within thirty days unless the court finds it is not in the best interest of justice. That happens at release, months before any finding of guilt.
If the second offense falls within five years of the first, section 49.09(h) adds more: a mandatory interlock on every vehicle you own or operate, running until the first anniversary of the end of the license suspension. Not one vehicle. All of them.
There is one place the interlock works in your favor. On the sealing rules, a six month interlock condition materially shortens the waiting period. That does not apply to a second DWI, which is not sealable, but it is worth knowing why the device is not purely a burden in the system as a whole.
Where a second is still contestable
The prior has to be proved. Whether the earlier case is what the State says it is, and whether it qualifies for enhancement, is a question with a real answer rather than an assumption.
Everything that makes a first case contestable applies here too. The stop, the testing and the video do not become less important because there is a prior.
Related pages
Second DWI questions
My first DWI was fifteen years ago. Does it still count?
Yes. Texas has no washout period for DWI enhancement. A prior from any point in your life makes the current charge a second offense.
I took deferred adjudication last time. Does that count?
Yes. Section 49.09(g) makes a DWI deferred count as a conviction for enhancement purposes permanently, even though the case was never a conviction for other purposes.
Can I get deferred on a second?
No. Article 42A.102(b) makes deferred adjudication available for a first section 49.04 offense only.
Will I have to fit an interlock before trial?
Almost certainly. For a charged subsequent offense an interlock is a mandatory bond condition under article 17.441, installed within thirty days. If the second falls within five years of the first, section 49.09(h) requires one on every vehicle you own or operate.
Can a second DWI be sealed later?
No. A second or subsequent DWI is not eligible for an order of nondisclosure, and a standing conviction cannot be expunged.