Almost always, the consequences of a second DWI conviction are much worse than a first DWI. A second DWI (driving while intoxicated, also known as driving under the influence [DUI] or drunk driving) may be considered by a judge or jury to be part of a pattern of criminal behavior, whereas a first DWI may be considered by a judge or jury to be “bad judgment” or an isolated incident.
Under the Texas Penal Code, Chapter 49, a second DWI may result in a parade of enhanced DWI penalties, including a mandatory minimum jail sentence, expensive fines, required driver’s license suspension, probation, and higher insurance rates, plus the requirement to install an ignition interlock device once a driver’s license is reinstated.
In Texas, it does not matter how long ago a first offense occurred. Any prior DWI offense in a person’s lifetime may trigger enhanced penalties after a first drunk driving conviction.
Attorneys for Second DWI in Plano, Allen, Frisco, and McKinney, TX
If you were charged with a second DWI in Plano, Texas, or anywhere in Collin County, you should consult with an experienced DWI attorney who can explain the related laws and who will aggressively defend you in both criminal and civil proceedings.
You must act quickly if you refused a breath test or chemical test for intoxicants because you only have 15 days after a DWI arrest to request an administrative hearing to retain your driver’s license or it will be automatically suspended. We can assist with both criminal and driver’s license issues, including representing a client at an Administrative License Revocation (ALR) hearing
Law Offices of Richard C. McConathy serves clients throughout Collin County, Texas, including the cities of Plano, Allen, Carrollton, Garland, Frisco, McKinney, and Richardson, as well as many nearby communities throughout the North Dallas area, including Rockwall and Grayson counties.
Contact the lawyers at Law Offices of Richard C. McConathy today at (469) 304-3422 to schedule a time to meet with us during a free, confidential consultation with one of our skilled DWI attorneys.
Second DWI Charge under Chapter 49 of the Texas Statutes
Under the Texas Penal Code, Title 10, Chapter 49, § 49.04, a person is guilty of DWI in Texas if he or she operates a motor vehicle in a public place while intoxicated.
If a person was previously convicted of a DWI offense, he or she may face enhanced penalties under § 49.09(a). While a first-time DWI offense with no aggravating circumstances is most often a Class B misdemeanor, a second DWI is a Class A misdemeanor, with a minimum statutory term of confinement of 30 days upon conviction.
Plano Police Department officers, Collin County Sheriff’s deputies, or Texas Highway Patrol officers may use chemical tests, such as breath tests, blood tests, or urine tests to determine a driver’s alcohol concentration (also known as blood-alcohol content, or BAC).
A driver may refuse a DUI test, but under Texas’ “implied consent” law (Texas Transportation Code, Title 7, Subtitle J, Chapter 724, § 724.011), a test refusal results in a driver’s license suspension of at least 180 days and up to two years. A suspension may be appealed through the Administrative License Revocation (ALR) process, but a hearing must be requested within 15 days of the arrest.
Definitions of Terms Related to Second DWI
Some of the terms related to a Second DWI offense are defined in the Texas statutes, including a motor vehicle, intoxicated, and alcohol concentration.
Texas defines a “motor vehicle” as “a device in, on or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks,” such as railroad cars. Motor vehicles include cars, trucks, motorcycles, boats, water scooters, airplanes, helicopters and even riding lawn mowers, but not trains.
In addition, a person must have “actual physical control” of a vehicle in order to be “operating” the vehicle.
“Intoxicated” is defined under the Texas Penal Code § 49.01(2) as:
- Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
- Having an alcohol concentration of 0.08 or more
Under Texas P.C. § 49.01(1), “alcohol concentration” means the number of grams of alcohol per:
- 210 liters of breath
- 100 milliliters of blood, or
- 67 milliliters of urine
Elements to be Proved for Conviction in a Second DWI Case
In order for the State of Texas to convict a person of a second DWI, a judge or jury must find that a person:
- Operated a motor vehicle in a public place on a specific date in a certain county;
- Operated a motor vehicle in a public place on a specific date in a certain county while intoxicated; and
- Has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated
(See Texas Penal Code, Chapter 49, §§ 49.04 and 49.09.)
Penalties for a Second DWI Conviction
Without any other aggravating factors, a Second DWI in Texas is a Class A misdemeanor (upgraded from the usual Class B misdemeanor charge for a First DWI) and includes jail confinement for at least 72 hours after arrest.
A Class A misdemeanor is punishable upon conviction by a mandatory minimum term of 30 days in jail and a maximum term of one year in jail and a fine of up to $4,000, or both (Texas Penal Code, §§ 49.09(a) and 12.21).
Other potential adverse consequences of a second DWI conviction may include:
- Loss of driving privileges for a period of 180 days to up to two years, unless a hardship license is granted (a Texas DWI automatically triggers a driver’s license suspension unless an administrative hearing is requested within 15 days of the arrest); If a second DWI occurred within five years of the previous conviction, the offender’s driver’s license may be suspended for a mandatory period of one to two years
- Probation or community supervision
- DWI school
- Completion of an approved alcohol or drug education course
- Attendance at an approved drug treatment program
- Community service
- Mandatory installation of an ignition interlock device (IID)
- Annual DWI “surcharges” of $1,500 per year imposed by the Texas Department of Safety (DPS) for a period of three years
- Court costs and any additional fees required by the court
- A permanent criminal record
Insurance companies also charge higher rates for drivers with multiple DWI convictions.
Ignition Interlock Device (IID)
The Texas Transportation Code, Title 7, Subtitle B, Chapter 521, Subchapter L, Section 521.241 states that an “ignition interlock device (IID) means a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator of the vehicle.” (An IID is also sometimes called a deep-lung device, or DLD.)
An IID is typically a handset with a blow tube connected to a vehicle’s ignition system and mounted to a vehicle’s dashboard or console.
In order to start his or her vehicle, a driver must blow a breath into an IID, which then determines if alcohol is present in the driver’s breath. If no alcohol is detected, the vehicle is allowed to start. When a vehicle starts after the initial breath test, the IID will randomly test a driver’s breath while moving, known as a “rolling test” in order to prevent drinking while driving.
If any alcohol above a low preset level is detected (including during a rolling test), the vehicle will be disabled and unable to start for a period of time. Repeated, failed breath tests may permanently disable the vehicle from starting, requiring a tow to the IID service center. Failing an IID test may result in the loss of driving privileges or a violation of probation.
The Texas Code of Criminal Procedure, Title 1, Chapter 17, § 17.441 states that a judge require an IID to be installed on every motor vehicle owned by an alleged DWI offender.
An IID is expensive, with the driver paying all costs of installation and maintenance. A typical installation cost of between $70 and $200, and monthly “rental” and maintenance costs of $50 to $100. Texas tacks on other driver’s license fees for persons ordered to have an IID.
In 2015, Texas enacted House Bill 2246, which revised some of the laws related to IIDs, making it somewhat easier for a person with a second DWI to retain a driver’s license if an IID is installed.
Second DWI Additional Resources
Texas Transportation Code, Title 10, Chapter 49 — Read the Texas statutes related to DWI and drunk driving offenses. Section 49.09 addresses enhanced DWI offenses and penalties, including a second DWI.
Texas Department of State Health Services Offender Education Programs — Find approved DWI offender education courses at this link, provided by the Texas DSHS. The programs are available to DWI offenders who have been ordered by a court to attend an approved alcohol or substance abuse education course.
Collin County DWI/Drug Court — Find information on the county website about its DWI and drugs court, including contacts for providers of addiction treatment and IID service providers. The stated mission of the DWI/Drug Court Program is “to promote community safety by providing intensive supervision services and treatment to reduce drug and alcohol usage, family violence, and offender recidivism.” The criminal courts are located at:
Collin County Court at Law 5
2100 Bloomdale Road, Suite 20382
McKinney, TX 75071
Find a Collin County Second DWI Attorney | Law Offices of Richard C. McConathy
If you were arrested for a second DWI in Plano, Allen, Frisco, McKinney, or areas in Collin County, Texas, contact the Law Offices of Richard C. McConathy today to schedule a free initial consultation to discuss your case.
The experienced DWI attorneys at the Law Offices of Richard C. McConathy will be able to provide important information about the laws and consequences related to a second DWI charge, including the IID program. We serve clients throughout Collin County, including Garland, Carrollton, and Richardson, as well as neighboring Rockwall and Grayson counties.
Contact the Law Offices of Richard C. McConathy today at (469) 304-3422 to discuss your case.