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Third or Subsequent DWI

Most first- and second-time DWI offenses are considered misdemeanors, but after a person is convicted twice of drunk driving in Texas, Chapter 49 of the Texas Penal Code requires that prosecutors file a third-degree felony DWI charge for a third or subsequent DUI offense.

Anyone who has been convicted of DWI (driving while intoxicated, also known as driving under the influence [DUI] or drunk driving) in the past surely knows something about the criminal and civil penalties that may result from a DWI conviction, but a third-degree felony DWI charge is a much more serious matter than a misdemeanor DWI.

In Texas, the conviction for a third-degree felony may result in a minimum sentence of two years in the Texas State Prison, with a maximum sentence of up to 10 years, and/or a fine of up to $10,000, as well as the loss of certain rights due to the felony conviction. The driving privileges of a person charged with a third or subsequent DWI in Texas are also in severe jeopardy.

Other collateral consequences of a felony drunk driving conviction are expensive "DWI surcharges" that Texas imposes for three years — if the state reissues a driver's license at all. Third-time offenders are also almost always required to install an ignition interlock device (IID). A person convicted of a third DWI felony will also be required to obtain expensive "SR-22" insurance in order to stay on the road.

Attorneys for Third or Subsequent DWI in Plano, Texas

If you were recently arrested for your third DWI or subsequent DWI and you have already been convicted of drunk driving two times or more, you should contact an experienced criminal defense attorney as soon as possible.

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 license revocation (ALR) hearing to retain your driver's license or it will be automatically suspended.

The experienced DWI attorneys at Law Offices of Richard C. McConathy understand Texas' complicated drunk driving laws and they are capable of aggressively defending you for a third or subsequent DWI charge in both criminal and civil proceedings, including representing you at an ALR hearing.

Law Offices of Richard C. McConathy represents DUI clients throughout Collin County, including the cities of Plano, Garland, Carrollton, McKinney, Allen, Frisco and Richardson, as well as 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.


Information about Three or More DWIs in Collin County, Texas

  • Third or Subsequent DWI under Chapter 49 of the Texas Statutes
  • Definitions of Terms Related to Three or More DWIs
  • Elements to be Proved in a Third or Subsequent DWI Case
  • Penalties for a Third or Subsequent DWI Conviction
  • Ignition Interlock Device (IID)
  • Additional Resources Related to a Third or Subsequent DWI


Third or Subsequent 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 and a second DWI is usually a Class A misdemeanor, a third or subsequent DWI is charged as a third-degree felony.

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 Three or More DWIs

Some of the terms related to a Third or Subsequent DWI offense are defined in the Texas statutes, including 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 upon 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 Third or Subsequent DWI Case

In order for the State of Texas to convict a person of a third (or subsequent) 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 two times (or more) 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(b)(2)).


Penalties for a Third or Subsequent DWI Conviction

A third or subsequent DWI conviction in Texas may result in substantial criminal and civil penalties. A felony DWI conviction may result in:

  • A term of two to 10 years in the Texas State Prison
  • A fine of up to $10,000
  • 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 third DWI occurred within five years of a 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 repeat offender class
  • Completion of an approved alcohol or drug education course
  • Attendance at an approved drug treatment program
  • Counseling for alcohol or substance abuse
  • Community service (up to 1,000 hours)
  • Mandatory installation of an ignition interlock device (IID)
  • Annual DWI "surcharges" of up to $2,000 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
  • An expensive "SR-22" insurance certificate
  • A permanent criminal record

Multiple Felonies

A previous felony conviction may result in a longer prison sentence for a new felony conviction because the offender may be declared a habitual felony offender. Texas Penal Code § 12.42(d) states that an offender who was convicted of any third-degree felony or higher for the second time may be punished by a term of life or up to 99 years in prison, with a minimum of 25 years imprisonment.

This means that an offender charged with his or her first felony DWI charge could possibly be sentenced to life in prison if he or she has a previous felony conviction, even if none of them involved drinking and driving.


Ignition Interlock Device (IID)

Under the Texas Transportation Code, Title 7, Subtitle B, Chapter 521, a three-time DWI offender is also required to install, at his or her own expense, an "ignition interlock device (IID). An IID is a deep-lung breath analysis mechanism that makes it impossible to start a vehicle without first providing an alcohol-free breath sample. (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. The Texas Code of Criminal Procedure, Title 1, Chapter 17, § 17.441 states that a judge requires an IID to be installed on every motor vehicle owned by a DWI offender.

An IID is expensive, with the driver paying all costs of installation and maintenance. A typical installation has a 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.

Although Texas enacted House Bill 2246 in 2015, which revised some of the laws related to IIDs, most third-time DWI offenders are not affected by the new law.


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 enhanced penalties for multiple DWI offenses.

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

Phone: 972-548-3850

Fax: 972-548-3855


Find a Qualified Attorney for Multiple DWIs in Lewisville, Texas

If you were arrested for a third or subsequent DWI in Plano or in Collin County, Texas or any of the nearby communities north of Dallas, contact Law Offices of Richard C. McConathy today to schedule a free initial consultation to discuss your case.

The experienced DWI attorneys at Law Offices of Richard C. McConathy will be able to provide important information about the laws and consequences related to a third or subsequent DWI charge, including the IID program. We serve clients throughout Collin County, including Plano, Garland, McKinney, Frisco, Carrollton, Richardson and Allen, as well as neighboring Rockwall and Grayson counties.

Contact Law Offices of Richard C. McConathy today at (469) 304-3422 to discuss your case.

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