# Must Prosecutors Prove Prior DWI Convictions? | TadLaw [Multiple DWI cases](https://tadlaw.com/resources/texas-dwi-resources/third-offense-dwi/) can quickly add up to serious jail time in Texas. Drunk driving penalties escalate with each subsequent offense–and that can include a [DWI](https://tadlaw.com/resources/texas-dwi-resources/texas-dwi-laws/) conviction from another state. For example, a [first-time DWI offense](https://tadlaw.com/resources/texas-dwi-resources/first-offense-dwi/) is charged as a Class B misdemeanor in Texas. But if you have a prior DWI conviction, the [second offense](https://tadlaw.com/resources/texas-dwi-resources/second-offense-dwi/) is charged as a Class A misdemeanor. And in some circumstances, prosecutors may seek “enhanced” penalties for a Class A or Class B misdemeanor if there is a prior conviction ## Criminal Appeals Court Reduces DWI Conviction ### Cites Lack of Evidence at Trial Prosecutors must still prove that you had a prior conviction in order to justify an elevated charge or an enhanced sentence. Even if prosecutors do not provide sufficient evidence on this point, however, you can still be convicted of the underlying DWI. It would simply be treated as a first offense. Consider this [recent decision by the Texas Sixth District Court of Appeals](https://scholar.google.com/scholar_case?case=11113122993071148248). In this case, a police initiated a traffic stop of the defendant, who was driving the wrong side of the street. The stop led to the defendant’s arrest for DWI. Prosecutors officially charged him with a Class A misdemeanor, which indicated this was the defendant’s second drunk driving offense. Specifically, the information charging the defendant listed a 2004 drunk driving conviction in the State of Louisiana. But at trial, the prosecution never presented any evidence related to the purported 2004 conviction. Nor did the defendant admit to it. Nor did the judge instruct the jury to consider the 2004 conviction, only the present DWI charge. It was only after the jury returned a guilty verdict that the prosecution discussed the Louisiana DWI case as part of the defendant’s sentencing. The judge ultimately sentenced the defendant to one year in jail and a $4,000 fine. The Sixth District Court of Appeals said this was inappropriate. The evidence at trial only showed the defendant was guilty of a first-offense, Class B misdemeanor. Yet his conviction reflected a Class A misdemeanor. This “cannot stand,” the Sixth District said. It was not okay for the prosecution to wait until sentencing to discuss the prior DWI: “Evidence admitted during the punishment phase of trial cannot supply proof of an element of the charged offense.” That said, the Sixth District did not simply free the defendant. There was still “sufficient evidence” presented at trial to sustain a Class B misdemeanor conviction. But the defendant was entitled to a new sentencing hearing, since the one-year jail term he previously received exceeded the maximum penalty for a first offense. On re-sentencing, the defendant faces up to 180 days in jail and a $2,000 fine, or basically half of his initial sentence. ## Charged With Multiple-Offense DWI or DUI? ### Contact Attorney Tad Nelson As Soon As Possible ![Houston DWI Attorney Tad Nelson](https://thenelsonfirm.com/wp-content/uploads/2013/07/sidebar_tad-150x150.jpg)Given the disparity in sentencing between first- and second-time DWI offenses, it is critical to ensure that prosecutors respect the due process rights of defendants. If you have been charged with a DWI or DUI–whether or not it is your first time–you need to work with an experienced Houston criminal defense lawyer who will zealously represent your interests in court. [Contact the Law Offices of Tad Nelson & Associates](https://tadlaw.com/contact-us/) today in Clear Lake, Houston, Galveston, or League City. If you need to speak with an attorney right away, call us at [**713-802-1631**](tel:7138021631). For a free legal consultation, call [(281) 280-0100](tel:+12812800100) today ## The Law Office of Tad Nelson & Associates ### Houston • Clear Lake • Galveston • League City Call or text [(281) 280-0100](tel:+12812800100) or fill out our [Free Case Evaluation Form](https://tadlaw.com/contact-us/) to get started DWI Blog Posts: [DWI Blood Testing and Texas Law DWI In a recent post, we discussed the exigent circumstances exception for warrantless blood-alcohol testing currently being considered by the U.S. Supreme Court....](https://tadlaw.com/blog/dwi-blood-testing-and-texas-law/) [Texas Ceremony Honors DWI Officers DWI Texas readers who question whether local authorities are investing more time and money into drunk driving enforcement efforts need only read about...](https://tadlaw.com/blog/texas-ceremony-honors-dwi-officers/) [Texas District Attorney Arrested for DWI DWI Government or public figures implicated in a scandal may take a variety of approaches. Some may deny all charges, while others offer...](https://tadlaw.com/blog/texas-district-attorney-arrested-for-dwi/) [DA Serves Half of DWI Sentence DWI This blog has profiled some of the penalties brought by Texas enforcement officials against individuals accused of driving while intoxicated, as well...](https://tadlaw.com/blog/da-serves-half-of-dwi-sentence/) --- Source: https://tadlaw.com/blog/must-prosecutors-prove-prior-dwi-convictions/