Criminal Record Enhancements for DWI

Did you know that there are Criminal Record Enhancements for DWI? Even other charges might enhance your DWI. Importantly, a prior felony impacts the potential punishment for your DWI. For example, a felony assault you picked up when you were younger might come back to haunt you.

Keep in mind that this is all general. If there is a specific enhancement that applies to a specific offense, that enhancement usually controls over the general rule. For misdemeanors, Texas Penal Code 12.43 contains the general enhancement rule. On Class A misdemeanors, the minimum term of confinement becomes 90 days (but the upper limit remains 1 year) if you have a prior Class A or Felony conviction. For Class B misdemeanors, there is an added 30 day minimum term of confinement (upper limit remains 180 days) if you have a prior Class A or B misdemeanor, or any felony.

DWI-Specific Criminal Record Enhancements for DWI

Again, that is just the general enhancement rule. For DWIs, there are some slight differences. The enhancement section for DWIs is 49.09. That section enhances a second DWI to a Class A misdemeanor with a minimum term of confinement of 30 days. Interesting to note, if your first DWI as also a Class A (because of a high BAC), then this section would control over 12.43 since specific enhancement provision control over the general rule. Similarly, a third DWI becomes a felony (i.e., two prior convictions even if both were plead as a class B). Some issues exist with this enhancement because of the old “10 year” rule. That rule said that a conviction 10 years before another cannot be used for enhancement. However, the Texas Legislature repealed that section of the statute, 49.09(e), back in 2005. Please, call us to discuss the Criminal Record Enhancements for DWI.

Criminal Record Impacts on Probation Eligibility

Having a felony on your record might cause issues depending on whether a judge or jury determines the punishment. If you go to the jury for punishment, there are certain requirements before the jury may recommend probation. One interesting note to start, though, is that if a jury recommends probation, than the judge “shall . . . place the defendant on [probation]” based on that recommendation. When a statute says a judge “shall” do something, it means the judge does not have discretion.

A jury may only recommend probation if:

• “before the trial begins, the defendant files a written sworn motion . . . that the defendant has not previously been convicted of a felony [even outside of Texas]; and
• the jury . . . [finds] that the information contained [in the motion] is true.”

To summarize, a prior felony is an absolute bar to jury-recommended probation.

A judge, however, has no such restriction on giving probation to someone with a prior felony. Though there are restrictions as to the minimum/maximum term for probation, a judge has discretion to order probation in the “best interest of justice” even with a prior felony on the person’s background. In other words, there is a much larger risk of going to the jury for punishment with a felony on your record. That isn’t to say “don’t do it” since each case will be different. But, going to the judge for punishment provides a somewhat simple path to DWI probation.

More about Mimi Coffey & The Coffey Firm

When people look for a Top DWI Attorney or Best DWI Attorney, they look for experience, certification, and respect in the legal community. Mimi Coffey is a nationally-renowned trial attorney, board-certified in DWI by the NCDD. She has been practicing for over 24 years and is an author of multiple DWI Defense textbooks. She is also a national and state-wide lecturer on the law.

The Coffey Firm handles a wide variety of cases, including Unlawful Carrying Weapon (UCW), Assault (including family violence), and Possession charges. We can also help you try to get a DWI off your record or avoid probation revocation.

Mimi is also listed on several “top criminal lawyer near me” directory listings such as Wise County DWI Lawyers, Tarrant County DWI Lawyer, Dallas County DWI attorney, Collin County DWI attorneys and Parker County DWI attorneys. Mimi is a caring DWI Lawyer in Dallas – Fort Worth. She is also involved in the Texas Tech School of Law foundation and enjoys using the skills she has developed to give back to the community.