These days everyone understands that driving while intoxicated is a crime. But few people understand when a Texas DWI, which is typically a misdemeanor crime, becomes a Felony.
As a practicing DWI defense attorney in Williamson County, Texas, I am often asked this question in one form or another.
When is DWI a felony? Is it the same as driving while intoxicated laws in other states? Is it only when someone is injured or is it when someone dies because of a wreck? Can a person accused of DWI face prosecution for other offenses as well or instead?
These are intelligent questions to ask, and the answers to them will help Texas DWI laws become more clear to those interested in better understanding them. Note, that I limit this discussion to Texas DWIs. Every state in the U.S has its own laws regarding driving while intoxicated and every state varies in how many grades of offenses they have, which offense are misdemeanors, which are felonies, and the range of punishment for violating the various grades of offenses.
Of all the Texas driving while intoxicated related felony charges, the two that depend on prior actions or an additional element of the offense to turn a misdemeanor DWI into a felony, are the easiest to understand.
First, the charge of DWI 3rd or More makes driving while intoxicated a felony if you have two previous convictions for DWI. Committing DWI with a child under 15 years old as a passenger in the car makes the offense a state jail felony. The presence of the child in the care elevates the crime from misdemeanor to felony.
Less obviously related, but equally important, the crime of Intoxication Assault occurs when a person, during the course of committing a DWI causes serious bodily injury to another person. For the purposes of enforcing this law, Texas defines serious bodily injury as, “injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily organ or member.”
But beware. Prosecutors might also, depending on the injury, charge Aggravated Assault with a Deadly Weapon, instead of Intoxication Assault. Why? Well in Aggravated Assault the State only has to prove the defendant intentionally, knowingly, or recklessly caused serious bodily injury (same definition as above) or caused lesser injury but used the vehicle in a manner capable of causing death or serious bodily injury. The State does not have to prove the defendant was intoxicated, only that the actions he or she took were reckless.
And finally, comes the worst charge. Intoxication manslaughter. Here the state must prove that during the course of committing DWI, you caused the death of another person. But be wary here, as well.
If the State can show that the DWI you committed would have been a felony on another ground, such as having two prior convictions, you can face a Murder charge. How? Texas has a provision called the Felony Murder rule. This rule, about which there has been a great deal of litigation and appeals opinion, says that if you cause the death of another during the course of committing a felony offense, you can face prosecution for murder.