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DWI / DUI Defense

A Driving While Intoxicated (DWI) charge is a common one and yet there exist many misconceptions about this criminal charge.

What is driving while intoxicated under Texas Law?

While drunk or drugged driving is illegal across the United States, each state has specific laws defining the offense and its associated legal penalties. In Texas, the general drunk driving law is found in Texas Penal Code Title 10, Chapter 49. The statute defines the term “intoxicated” in two distinct ways:

  • Not having the normal use of your mental and physical faculties due to the consumption of drugs or alcohol; and/or
  • Having a BAC of .08 percent or more.

The cases that Alex R. Hernandez Jr. are numerous and usually have to deal with the “not having the normal use of your mental and physical faculties” “due to the consumption of” when the video of his clients show nothing but there is proof of consumption or vice versa when there is not having the normal use of mental and physical faculties but there is no proof of consumption. Alex can fight either argument and has done so successfully.

For certain classes of drivers, the BAC limit is lower. For example, drivers who are under 21 years of age are prohibited from driving with any detectable amount of alcohol in their system, and commercial drivers are subject to a .04 percent legal limit.

Being aware of your rights can help you stay on the right side of the law when charged with DWI. You face this charge if your blood alcohol level is found to be higher than 0.08 or if your driving is hazardous, irrespective of the amount of alcohol in your blood.

While a DWI charge may be a common one in Texas, the penalties are by no means light. If you’re caught for the third time, you could face a jail time of two years. Jail is mandatory, and if you wish to avoid imprisonment and the harmful effects of a criminal record against your name, then you need to employ a lawyer who knows how to argue your case to weaken the prosecution’s arguments and also get you a plea deal.

He is a Chart for Texas DWI Penalties:


Offense Level

Maximum Fine

Jail Range

Lic. Suspension

1st DWI and BWIClass B MisdemeanorUp to $2,00072 hours to 180 days90 to 365 days
1st DWI and BWI with Blood or Blood Alcohol Concentration (BAC) at or over .15Class A MisdemeanorUp to $4,00072 hours to 1 year in the county jail90 to 365 days
1st DWI with Open Container EnhancementClass B MisdemeanorUp to $2,0006 days to 180 days in the county jail90 days to 365 days
2nd DWI and BWIClass A MisdemeanorUp to $4,00030 to 365 days180 days to
2 years
3rd DWI and BWI3rd Degree FelonyUp to $10,0002 to 10 years in Texas Department of Criminal Justice (TDCJ)180 days to
2 years
3rd or more DWI and BWI with 1 prior TDCJ penitentiary tripPunished as a 2nd Degree FelonyUp to $10,0002 to 20 years in Texas Department of Criminal Justice (TDCJ)Up to
2 years
3rd or more DWI and BWI with 2 prior TDCJ penitentiary tripsEnhanced Felony PunishmentUp to $10,00025 years to life in Texas Department of Criminal Justice (TDCJ)Up to
2 years
Intoxication Assault – DWI that Causes Serious Bodily Injury3rd Degree FelonyUp to $10,0002 to 10 years in Texas Department of Criminal Justice (TDCJ)180 days to
2 years
Intoxication Manslaughter – DWI that Causes Death2nd Degree FelonyUp to $10,0002 to 10 years in Texas Department of Corrections (TDCJ)180 days to
2 years
DWI with child passenger – Child Younger than 15 Years of AgeState Jail FelonyUp to $10,0006 months to 2 years in a State Jail Facility90 days to 2 years

Consent or no Consent

These laws stipulate that if you’re driving, you have given your consent for a breathalyzer test. Refusal can lead to a suspension of your driving license.

Texas’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving or boating while intoxicated, then you consent to taking one or more chemical tests of your blood or breath for the purpose of determining your blood alcohol content (BAC).




Sec. 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.
(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person’s alcohol concentration.


Sec. 724.031. STATEMENT REQUESTED ON REFUSAL. If a person refuses the request of a peace officer to submit to the taking of a specimen, the peace officer shall request the person to sign a statement that:
(1) the officer requested that the person submit to the taking of a specimen;
(2) the person was informed of the consequences of not submitting to the taking of a specimen; and
(3) the person refused to submit to the taking of a specimen.

Commercial Drivers and DWI

Commercial vehicle drivers that get behind the wheel put us all at risk. The individuals who drive commercial vehicles often are behind the wheel of cars or trucks that are designed for highly specialized purposes. As such, they are often much larger and less maneuverable than the passenger vehicles that most of us drive. These characteristics can make them much more difficult to drive and also capable of causing serious injury if they are involved in accidents. Furthermore, commercial drivers are often entrusted with the transportation of hazardous materials or even other people.

Because of the inherent risks associated with the operation of commercial vehicles, almost every aspect of the industry is regulated by the federal government, including the licensing of commercial drivers. Under Federal Motor Carrier Safety Administration (FMCSA) regulations, a person who holds a commercial driver’s license (CDL) is subject to a .04 blood alcohol content (BAC) limit when he or she is operating a commercial vehicle. This is significantly lower than the .08 BAC limit to which non-commercial drivers are subject.

In addition, CDL holders who are determined to have operated any type of vehicle under the influence of drugs or alcohol are disqualified from driving a commercial vehicle for 1 year. If the driver drives a commercial vehicle that transports hazardous materials, he or she can be disqualified for three years. Other types of offenses that may result in disqualification from driving a commercial vehicle include:

• Refusal to submit to testing;
• Leaving the scene of an accident;
• Operating a commercial vehicle with a BAC of 0.04 or more; and
• Operating a motor vehicle under the influence of a controlled substance.

CDL License Holder DWI charges and related offenses have the potential to result in significant fines, the loss of your CDL license, jail time, and in the case of commercial drivers, the inability to make a living and potentially the end of your career. As a result, it is extremely important that commercial drivers who are facing allegations of DWI discuss their options with an experienced DWI defense attorney as soon as possible.

The onus is on the state to prove that you were intoxicated while driving a vehicle on public property. You need a strong defense that knows the laws governing DWI in Texas, the difference between DWI and DUI, and the various penalties associated with driving while intoxicated. Call us today for secure and zealous representation  for your DWI or DUI.

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