What Happens When You Get a Fifth DWI in Texas?

A fifth DWI in Texas is a third-degree felony, 2 to 10 years in prison, because of the prior DWIs (Penal Code §§ 49.09(b), 12.34). Call (713) 664-4000 for a free consultation before your first court setting. If you also have two prior felony convictions in the right order, Texas’s habitual offender rule (often called the three strikes law) can raise the range to 25 years to life.

First and Second Offense DWI Penalties in Texas

Under Penal Code § 49.04 and Transportation Code § 521.344, a first DWI conviction can bring:

• A fine of up to $2,000
• 72 hours to 180 days in jail
• A license suspension of 90 days to a year

A second DWI conviction doubles the fine and the driver’s license suspension and carries jail time between one month and one year.

Third and Subsequent Offense DWI Penalties in Texas

When someone gets a third, fourth, or fifth DWI conviction in Texas, the consequences become much harsher. The driver’s license suspension remains the same, but the fine could be as much as $10,000. Prison time runs from two to 10 years, and prior felony convictions can push the range higher.

At this level everything is felony stakes. Talk to our Houston felony DWI lawyer before your first court setting.

First, second, third, and subsequent convictions also result in the judge assessing a state fine at sentencing in addition to the DWI fine. The state fine can be $3,000, $4,500, or $6,000.

Can a 5th DWI Get You 25 Years to Life in Texas?

It can, but not because of the DWIs alone. Texas doesn’t have a law called “three strikes.” What people mean is the habitual offender rule in Penal Code § 12.42(d). If you’re on trial for a felony and the State proves you have two prior felony convictions that were final, and the second prior offense happened after the first conviction was already final, the range becomes 25 to 99 years or life in prison. Prior state jail felonies that were punished as state jail felonies don’t count toward it.

A fifth DWI is already a felony DWI, a third-degree felony with 2 to 10 years, because of the prior DWIs (§ 49.09(b)). The habitual rule only comes in if the State has two more prior felonies to stack on top. For someone with four DWIs, those are usually earlier felony DWIs, like a third and a fourth. One prior felony by itself moves the range to 2 to 20 years under § 12.42(a), which our 4th DWI in Texas page covers in more detail.

Where we fight the enhancement

Every prior is its own fight, and the State has to win each one. The same conviction can’t do two jobs. Section 49.09(g) lets the State use a prior to make the DWI a felony or to enhance the punishment under § 12.42, but not both. If the State needs your old DWIs to make this case a felony, it can’t use those same convictions again for the 25-to-life range.

A felony probation that was never revoked isn’t a final conviction for § 12.42, so it can’t count as one of the two priors. Order matters too. The second prior offense has to have been committed after the first conviction became final, and cases that overlapped or were resolved together often don’t meet that test. We pull every old judgment to see how each case actually ended and when.

None of this happens automatically. The State has to plead the enhancement and prove it, including that you’re the person in each old judgment, and records from 15 or 20 years ago go missing or lack fingerprints. Enhancements also get negotiated. Getting the habitual allegation abandoned takes 25 to life off the table and puts the case back in the 2 to 10 or 2 to 20 range.

If you’re facing a fifth DWI with felony priors, call (713) 664-4000 before you talk to anyone about your record. The fight over the priors starts before the first court date.

The Elements of a DWI in Texas

According to TX Penal Code § 49.04, the prosecutor has to prove these elements to get a conviction of DWI in Texas.

The accused was:

• Operating a motor vehicle
• In a public place
• Intoxicated

Under Texas law, intoxication means that the defendant had a blood alcohol concentration (BAC) of 0.08 or higher or that the defendant lost the normal use of their mental or physical faculties due to the introduction of alcohol or drugs into the body.

For drivers under the age of 21, there is a zero-tolerance policy, so any detectable amount of alcohol can lead to a charge. Commercial drivers face a lower number too: 0.04 while driving a commercial vehicle gets them disqualified from holding a CDL, even though the DWI limit is still 0.08.

Defenses to a Texas DWI

Your best option when facing DWI charges in Texas is to fight the charges and seek a dismissal or acquittal or to negotiate for a plea bargain. Since the prosecutor has the burden of proof, meaning that they have to prove that you are guilty and you do not have to prove your innocence, one tactic is to attack the prosecutor’s evidence against you.

Texas Code of Criminal Procedure 38.23 says evidence obtained in violation of the Texas or U.S. Constitution or laws can’t be used against a defendant at trial. Your Houston DWI Lawyer might file a motion to suppress evidence if:

• The police officer who performed the traffic stop lacked reasonable suspicion or probable cause to pull you over or perform the sobriety tests.
• The police seized evidence illegally (for example, without a valid search warrant) when the facts required one. 

If a motion to suppress isn’t appropriate in your case, there are other things that can be argued to a jury, such as:

• The breathalyzer malfunctioned.
• Someone else was driving the vehicle.
• The officer didn’t give the field sobriety tests the way he was trained to. 
• A law enforcement official violated your constitutional rights.

If any of these things happened, or there were other irregularities, you will want to bring it to the attention of your Texas DWI lawyer so that they can investigate and take appropriate action.

A fifth DWI conviction in Texas could ruin your life and hurt your family financially and socially. If you have been charged with a fifth DWI, you will want to work with an attorney who will be aggressively fighting for you. You can contact Blass Law to get started today.