The answer may be surprising. The Texas Penal Code states that driving while intoxicated is a Class B misdemeanor for a first offense and punishable by up to 180 days in prison, a fine of up to $2000, or both. Tex. Pen. Code §§ 12.22 and 49.04(b). With one subsequent DWI offense, a second offense is a Class A misdemeanor and punishable by up to one year in prison, a fine of up to $4000, or both. Id. at §§ 12.21 and 49.09(a). At the third offense, driving while intoxicated becomes a third degree felony and is punishable by two to ten years in prison with the possibility of a fine of up to $10,000. Id. at §§ 12.34(a) and 49.09(b).
For all crimes, as the number of prior offenses rises, so does the punishment. DWI offenses are no exception. Thus one could receive a life sentence for a DWI, even if no one was injured in the offense. Section 12.42(d) of the Penal Code provides for a punishment of a period of incarceration of 25 to 99 years or life for a felony offense for a felony DWI charge “if it is shown…that the defendant has previously been finally convicted of two felony offenses." Since the third DWI is a felony charge, a defendant would have to be facing his fifth DWI conviction for this habitual felony offenders section of the Penal Code to apply—the third and fourth DWI convictions serving as the prior two felonies and the fifth conviction triggering the habitual felony offenders section—if he has no other criminal record. If the defendant does have a criminal record that includes more than just prior DWIs, then the prosecution need not rely only felony DWIs in making this calculation. Last month in Salzido v. State, the Amarillo Court of Appeals affirmed the conviction of a defendant sentenced to 25 years incarceration for a defendant convicted of third DWI. No. 07-10-0031-CR (Tex. App.—Amarillo May 11, 2011) (mem. op.) Though he was being tried for only his third DWI offense, the habitual felony offenders section of the Penal Code was triggered because he had two prior felony convictions. Id.
Do Texans ever receive life sentences for DWI offenses? Yes. In 2009, a Montgomery County jury sentenced a defendant to life in prison on his third DWI conviction. The Courier of Montgomery County, 3rd DWI Conviction lands life sentence (Oct. 15, 2009), available at http://www.yourhoustonnews.com/courier/news/article\_20d0cd73-ca22-5af9-ac5b-2bffc915a0c7.html. Like the defendant in Salzido, the habitual felony offenders section of the Penal Code was triggered because of the defendant’s lengthy criminal history. Id. Also in this case, the jury found the vehicle the defendant was driving to be a deadly weapon, which may have increased the length of his sentence if he had not been sentenced to life. Id. Williamson County is also making these arguments. ABC News, Is Life Sentence Too Harsh For Man Convicted of Ninth DWI? (Aug. 13, 2010), available at http://abcnews.go.com/US/texas-man-life-sentence-ninth-dwi/story?id=11395058. There, after a jury sentenced a man to life on his ninth DWI conviction, the district attorney compared drunk driving to the defendant “using a shotgun to shoot lights randomly around his neighborhood." Id. See also Associated Press, Wichita County man gets life sentence for 10th DWI (Aug. 8, 2008), available at http://www.chron.com/disp/story.mpl/headline/metro/5932916.html, and Associated Press, Waco man gets life sentence for drunk driving (June 10, 2011), available at http://www.chron.com/disp/story.mpl/ap/tx/7605367.html.
These long and arguably harsh sentences and arguments and jury findings that vehicles when driven by an intoxicated driver are deadly weapons underscore the importance of a skilled Texas DWI attorney with a sound trial strategy for a defendant facing a DWI charge—be it his first, second, or tenth charge—and whether or not someone was injured. Because sentencing of DWIs becomes stricter and prison terms become longer the deeper one’s record, an experienced attorney for a first DWI charge is as important as an experienced attorney for a ninth DWI charge.