Second DWI

A prior DWI conviction is not a punishment enhancement for a Class B misdemeanor; rather, it is an element of the offense of Class A misdemeanor DWI under subsection 49.09(a) that must be proven during the guilt-innocence phase of a jury trial.

Therefore, if no evidence is shown that the defendant had a prior DWI conviction, then the evidence is legally insufficient to support a conviction for a Second DWI as a Class A misdemeanor. Instead, the court can only sentence the defendant for a first DWI, which is a Class B Misdemeanor.

For this reason, many second DWI offenses are treated as a first DWI when the prosecutor has a hard time prove the prior conviction. Convictions that are particularly old or out of state are the most difficult to prove.

Attorneys for a Second DWI in Tarrant County, TX

If you were arrested for a second DWI in Tarrant County, TX, then contact an experienced Fort Worth DWI defense attorney at Law Offices of Richard C. McConathy. During the free consultation, you can discuss the facts of your case with the attorney. The attorney can explain the elements of the offense and special defenses that can be used as you fight for the absolute best result in your case.

Call (817) 422-5350 today.


Difference Between a First DWI and a Second DWI

Under subsection 49.04(b), a first DWI is a Class B misdemeanor. This Section requires no prior DWI convictions, stating, in part:

  • a person commits a DWI offense if the he or she is intoxicated while operating a motor vehicle in a public place; and
  • except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

See Tex. Penal Code § 49.04(a), (b).

The punishments for a DWI charged as a Class B misdemeanor include:

  • a fine not to exceed $2,000;
  • confinement in jail for a term not to exceed 180 days; or
  • both such fine and confinement.

For a second DWI, a DWI offense with a prior conviction under subsection 49.09(a) is a Class A misdemeanor. This subsection requires proof of one prior DWI conviction, stating:

"[A]n offense under 49.04, ... is a Class A misdemeanor, with a minimum confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated...."
Id. § 49.09(a).

The punishments for a DWI charged as a Class A misdemeanor is:

  • a fine not to exceed $4,000;
  • confinement in jail for a term not to exceed one year; or
  • both such fine and confinement.

Tex. Penal Code § 12.21 (West 2015).

Therefore, a prior DWI conviction is an element of the offense of Class A misdemeanor DWI under Section 49.09(a). The prior DWI conviction is a fact that is “legally required for a fact finder to convict a person” of Class A misdemeanor DWI. If the defendant has a prior DWI conviction, the statute enhances the degree of the offense, from a Class B misdemeanor DWI to a Class A misdemeanor DWI. See Tex. Penal Code §§ 49.04(b), 49.09(a).

In other words, a prior DWI conviction is not a punishment enhancement of a Class B misdemeanor DWI. A prior DWI conviction is an element of the offense of Class A misdemeanor DWI under subsection 49.09(a).

So to prove a second DWI as a class A misdemeanor, the prosecutor must submit sufficient evidence of the defendant’s prior DWI conviction to the jury during the guilt-innocence phase. See Tex. Code Crim. Proc. Ann. art. 38.03 (requiring every element to be proven beyond a reasonable doubt to convict a person of an offense).


Finding Attorneys for a Second DWI in Fort Worth, TX

If you were charged with a second DWI in Fort Worth, TX, or the surrounding areas of Tarrant County, then contact an experienced criminal defense attorney at Law Offices of Richard C. McConathy. Our DWI defense attorneys can help protect you from the typical penalties for a second DWI conviction which is a Class A Misdemeanor including:

  • a fine not to exceed $4,000.00;
  • confinement in jail of 30 days to one year; and
  • a driver license suspension for 180 days to two years.

Call us to find out the best ways to fight the charges for the best possible result. Call {{$firm]] today.


This article was last updated on Monday, April 24, 2017.