Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsections (c), (d), and (e) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.
(e) If it is shown on the trial of an offense under this section that at the time of the offense the person was operating the motor vehicle in a school crossing zone during the time the reduced speed limit applies to the zone, the offense is a state jail felony. In this subsection, "school crossing zone" has the meaning assigned by Section 541.302, Transportation Code.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.55, eff. Sept. 1, 1995.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 960 (H.B. 1199), Sec. 2, eff. September 1, 2011.
Acts 2025, 89th Leg., R.S., Ch. 991 (S.B. 826), Sec. 1, eff. September 1, 2025.
Notes of Decisions
Cited in
2,466
cases (
266 in the last 5 years), 1994–2026 · leading case:
Kirsch, Scott Alan, 357 S.W.3d 645 (Tex. Crim. App. 2012).
Kirsch, Scott Alan, 357 S.W.3d 645 (Tex. Crim. App. 2012).
· cites it 4× “Appellant, Scott Alan Kirsch, was convicted of his second driving while intoxicated (DWI) offense in violation of Texas Penal Code § 49.04(a). 1 Tex. Pen.Code § 49.”
Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005).
· cites it 4× “After the accident, Department of Public Safety (DPS) Trooper William Sulak arrested appellant for driving while intoxicated (DWI) in violation of TEX. PENAL CODE § 49.04. After his motion to suppress evidence was denied, appellant plead guilty pursuant to a plea agreement, and…”
Weaver v. State, 87 S.W.3d 557 (Tex. Crim. App. 2002).
· cites it 8× “Texas Penal Code §§ 49.04 and 49.09(b) define felony driving while intoxicated (DWI) as DWI plus two prior intoxication-related convictions.”
Benson, Yusulf Shaheed, 459 S.W.3d 67 (Tex. Crim. App. 2015).
· cites it 6× “”31 The offense of felony DWI, defined in Texas Penal Code §§ 49.04 and 49.09, occurs “if the person is intoxicated while operating a motor vehicle in a public place” and “has previously been convicted .”
Bagheri v. State, 119 S.W.3d 755 (Tex. Crim. App. 2003).
· cites it 4× “Tex. Penal Code § 49.04. The court sentenced appellant to four months in jail, probated for 18 months, and a fine of $1500 plus court costs.”
Dornbusch v. State, 262 S.W.3d 432 (Tex. App. 2008).
· cites it 6× “See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003).”
Ex Parte Roemer, 215 S.W.3d 887 (Tex. Crim. App. 2007).
· cites it 10× “ Defendant # 1: Convicted in Texas of Involuntary Manslaughter under former Texas Penal Code Section 19.05(a)(2) on August 31, 1994, and currently on trial for the offense of Driving While Intoxicated under Texas Penal Code Section 49.”
Ramjattansingh v. State, 548 S.W.3d 540 (Tex. Crim. App. 2018).
· cites it 3× “See Tex. Pen. Code § 49.04(a), (d) (converting Class B misdemeanor DWI to a Class A misdemeanor whenever a person driving while intoxicated is shown to have had an "alcohol concentration level of 0.”
Bowley v. State, 310 S.W.3d 431 (Tex. Crim. App. 2010).
· cites it 4× “See Tex. Pen.Code § 49.04. For purposes of offense enhancement, the indictment alleged that Bowley had two prior DWI convictions, one in Hockley County and one in Terry County.”
Foley v. State, 327 S.W.3d 907 (Tex. App. 2010).
· cites it 4× “See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003), § 49.”
Gibson v. State, 995 S.W.2d 693 (Tex. Crim. App. 1999).
· cites it 4× “See TEX. PEN.CODE §§ 49.04 & 49.09. The two manslaughter convictions arose from the same incident involving Gibson's operation of a motor vehicle while intoxicated.”
— Tex. Penal Code § 49.04(1)(b)(7)(a) — 1 case
— Tex. Penal Code § 49.04(A) — 1 case
— Tex. Penal Code § 49.04(a) — 528 cases
Kirsch, Scott Alan, 357 S.W.3d 645 (Tex. Crim. App. 2012).
“Appellant, Scott Alan Kirsch, was convicted of his second driving while intoxicated (DWI) offense in violation of Texas Penal Code § 49.04(a). 1 Tex. Pen.Code § 49.”
Ramjattansingh v. State, 548 S.W.3d 540 (Tex. Crim. App. 2018).
“See Tex. Pen. Code § 49.04(a), (d) (converting Class B misdemeanor DWI to a Class A misdemeanor whenever a person driving while intoxicated is shown to have had an "alcohol concentration level of 0.”
— Tex. Penal Code § 49.04(a)(d) — 1 case
— Tex. Penal Code § 49.04(b) — 71 cases
Benson, Yusulf Shaheed, 459 S.W.3d 67 (Tex. Crim. App. 2015).
“”31 The offense of felony DWI, defined in Texas Penal Code §§ 49.04 and 49.09, occurs “if the person is intoxicated while operating a motor vehicle in a public place” and “has previously been convicted .”
Gibson v. State, 995 S.W.2d 693 (Tex. Crim. App. 1999).
“See TEX. PEN.CODE §§ 49.04 & 49.09. The two manslaughter convictions arose from the same incident involving Gibson's operation of a motor vehicle while intoxicated.”
— Tex. Penal Code § 49.04(b)(2) — 1 case
— Tex. Penal Code § 49.04(c) — 6 cases
— Tex. Penal Code § 49.04(d) — 45 cases
Ramjattansingh v. State, 548 S.W.3d 540 (Tex. Crim. App. 2018).
“See Tex. Pen. Code § 49.04(a), (d) (converting Class B misdemeanor DWI to a Class A misdemeanor whenever a person driving while intoxicated is shown to have had an "alcohol concentration level of 0.”
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