Texas Penal Code § 49.04 DWI carries a special penalty provision, which on its face seems to carry a higher penalty than normal for a Class B Misdemeanor:

…an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours…

Indeed, “regular” Class B misdemeanors have a punishment range of 0 to 180 days, not 72 hours to 180 days. And I often get asked by potential clients, who have done some DWI research online before coming to see me, doesn’t this mean there’s at least some mandatory jail time for a first offense DWI in Texas, even if the defendant is granted probation?

But the answer is still no. The quickest explanation here is that the statute is referring to the minimum amount of time that can be probated by a judge; but as we will see, that is virtually meaningless.

When someone is convicted of any offense in Texas, and then placed on probation, they have a jail sentence “hanging over their head” as a possible penalty in case they violate their probation. (Think of it as the carrot and the stick.)

And in a DWI probation situation, it’s true that the statute requires the judge to sentence the defendant to 72 hours, or 3 days, as a minimum term of the probated sentence.

Now, in theory, a judge could sentence someone to 2 days in jail, but suspend the sentence, and not require it to be served unless the defendant violated the terms and conditions of their probation, for a regular non-DWI Class B offense. But no sane judge would ever do that. Why?

Well, we’re back to the carrot and the stick. If a defendant were sentenced to 2 days in jail probated for any length of time, they would actually have an incentive to violate their probation. Their “penalty” for violating would entail being taken off probation, and sentenced to a maximum of 2 days.

But they would, by statute, be credited with at least one day for the night they were arrested. And, at least in Austin, they would be given 2 for 1 towards their sentence (the Travis County Jail, like most county jails in Texas, gives 2 days credit for every day actually served). In other words, they would be off probation, and given back time for the time they had already served. That’s not exactly a punishment for violating their probation.

The practical truth is this: whether it’s a shoplifting, possession of marijuana, DWI, or any other Class B misdemeanor, a judge is likely to “sentence” the defendant to something on the higher range of the punishment ladder (like 120 to 180 days) when probating a sentence. This is to ensure that the judge actually has a stick, when they grant that carrot of probation.

(One final quick lawyer caveat as I re-read my entry before posting: I am not saying that probation is mandatory in the first place. Simply that folks shouldn’t read the statute to mean that they are definitely going back to jail, if they end up convicted for DWI.)