Do I Have to Go to Jail for a Texas DWI?

In Texas, a first-time drunk driving offense is typically prosecuted as a Class B misdemeanor under Section 49.04 of the Texas Penal Code. Normally, a Class B misdemeanor refers to a crime that is punishable by either a fine of no more than $2,000, a jail term of not more than 180 days, or both. In other words, for most Class B misdemeanors, the judge or jury has the option of only ordering the defendant to pay a fine rather than imposing any jail sentence.

But under Section 49.04(b), a Class B misdemeanor DWI conviction carries a “minimum term of confinement of 72 hours.” That is to say, the court must send the defendant to jail for at least three days. There is no option to waive any jail time in favor of just a fine.

Appeals Court Holds Fine-Only Sentence “Illegal”

To illustrate the importance of this rule, a Texas appeals court recently ordered a new sentencing hearing for a defendant convicted of DWI who was fined but not given at least three days in jail. In this case, Price v. State, the defendant also challenged his conviction on appeal. But the appellate court found sufficient evidence supported the jury’s decision to find the defendant guilty.

At the defendant’s trial, the appellate court explained, the jury heard from the arresting officer, who testified that he “smelled alcohol” in the defendant’s car, and the defendant himself “exhibited slurred speech.” The defendant also admitted to the officer that he had visited “a few bars” that evening and had “three or four beers” prior to the officer’s stop. And critically, the defendant’s blood-alcohol level exceeded 0.08 percent, which is the legal limit in Texas.

But while the defendant’s decision to find the defendant guilty was legally sound, the appellate court said the trial judge erred in explaining the law to the jurors regarding an appropriate sentence. The judge told the jury that it could assess the defendant’s punishment at “confinement in the Williamson County jail for 72 hours to 180 days, and/or a fine in the amount of $0 to $2,000.” The prosecutor objected, citing Section 49.04(b) requires a minimum confinement of 72 hours, the judge overruled the objection and declined to alter the instruction.

The jury ultimately decided to fine the defendant the maximum allowable fine of $2,000 but assessed no jail time. The appeals court said that was a mistake. “Because [the defendant’s] sentence of zero days’ confinement fell below the minimum statutory punishment of seventy-two hours’ confinement,” the court explained, “it is illegal and a nullity.” The appeals court therefore returned the case to the trial court for resentencing.

Speak with a Houston DWI Defense Lawyer Today

Many Texas residents are unaware of the fact that the law requires a minimum amount of jail time for even a first-time DWI conviction. Indeed, if you are arrested and charged with drunk driving, there may be many aspects of the law that are unfamiliar to you. An experienced Houston criminal defense attorney can advise you as to your rights. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today if you need immediate advice or assistance following a DWI charge. Call (281) 280-0100.