Can I still be charged in Texas with a DWI if I blow below the legal limit?

All 50 states in the United States have a legal limit to how much alcohol can be in your system at the time you operate a vehicle. In Texas, as in all states but Utah, that legal limit is 0.08% for both breath alcohol content (BrAC) or blood alcohol content (BAC). When a person has a BrAC or BAC of 0.08% or higher, that person is presumed to be legally intoxicated. If you are pulled over in Texas and the officer suspects you have been driving while intoxicated -- either by alcohol or drugs -- then you may be asked to perform a preliminary breath test (PBT). This breath test is one of several field sobriety tests police use during their DWI investigation to determine whether to arrest you or not for a DWI.

One of the biggest fallacies in a DWI situation is that if you pass the breath test, you will be released. In Texas, you must be under arrest before an evidentiary breath test (not a portable breath test done on the roadside) can be requested and conducted. Police already formed an opinion of intoxication based upon not having the normal use of your mental and/or physical faculties due to consumption of alcohol or drugs. Doug Murphy is a Board Certified DWI defense attorney and a Board Certified criminal defense lawyer based in Houston, TX but representing clients throughout the metropolitan area.

Doug Murphy is known by his peers for his skill and resourcefulness. He can help you if you have been arrested and charged with DWI even though your blood alcohol content was under 0.08%. Here, some of your questions regarding a DWI arrest while not meeting the BrAC or BAC legal limit threshold.

What is the PBT and its role in DWI arrests in Harris County?

A PBT is a handheld portable device that gives a breath-alcohol reading. These devices have a troubled history. Known to be inaccurate and unreliable, the results of PBT tests are not admissible as evidence. So why are they used? They are used because they indicate that you may be intoxicated and that further testing (like field sobriety tests, a second breath test, or a blood test) may be needed.

But because they are sometimes unreliable, the officer may assume the latter is the reason you failed the test and move on to other testing. It's all a part of the police intimidating you while conducting a DWI investigation.

How can you get arrested for a DWI in Texas without reaching or exceeding the legal limit?

Field sobriety tests are often performed after a driver fails a PBT. These tests are used to confirm the suspicion that you are legally intoxicated. That said, they can also be administered if you pass the PBT but you fail to show "normal" mental and physical faculties.

The assumption is everyone responds to alcohol differently, so a small amount could affect your ability to drive safely. Police test your mental and physical faculties by requesting you perform any or all of three standardized field sobriety tests: (1) walk-and-turn; (2) one-leg stand; and (3) horizontal gaze nystagmus. During these tests, officers are looking for certain clues that are supposed to indicate that you are likely intoxicated.

Examples of Not Exhibiting "Normal" Mental Faculties

Notwithstanding that "normal" mental faculty is different for each one of us, therefore, what is "normal" is also what is debatable. The said, there are specific signs that police take as proof you are not exhibiting "normal" mental faculties. These so-called signs include but are not limited to:

  • Combative or belligerent behavior
  • Slow or slurred speech
  • Not making sense or contradicting him or herself
  • Confused, dazed, or disoriented
  • Loss of memory
  • Irrational behavior.

Of course, for most law-abiding citizens, being pulled over for a traffic stop and being harassed by the police for DWI suspicion is nerve-racking. Anxiety can easily take over. And anxiety can easily bring out some of these "signs."

Examples of Not Exhibiting "Normal" Physical Faculties

Police also take note of your physical presence and how you present yourself. Some of the signs they consider as not exhibiting "normal" physical faculties are as follows:

  • Fumbling fingers
  • Tripping
  • Lethargic
  • Uncoordinated gait-walking.

These signs, however, can be symptoms of other health conditions. Something so much as a back injury, foot injury, neurological conditions, or obesity -- among other health conditions -- can negatively impact your physical faculties while being investigated for DWI.

In the end, though, what does normal mean? And therein lies the problem: there is no normal. Each person is different with regard to how a person responds to alcohol and how a person's mental and physical health impacts the performance of field sobriety tests.

When do you need to contact a DWI defense attorney in Houston for your DWI charge?

If you have been charged with a DWI and are confused why since you passed the breath test, then it is important to seek the counsel of an experienced DWI defense lawyer in Harris County. For some of you, you may assume there's no case against you because you passed the test, so there's no need to worry. For others of you, charges may not yet have been filed by the State, so again you assume there is nothing to worry about.

But you should worry. You can still be convicted. Charges can still be filed.

These kinds of cases can be tricky and come down to the word of the police officer. Police officers are often believed without question by a jury due to the very nature of being a police officer: someone sworn to protect and serve the public. But with an experienced police DWI lawyer in Houston TX, you can defeat the word of the police. So, it is important to remember to take a DWI charge seriously even if you passed the PBT.

But it is also important to know you have defensesDoug Murphy, Board Certified in both DWI defense through the National College of DUI Defense and criminal law through the Texas Board of Legal Specializations, is one of only two lawyers in Texas to be Board Certified in both practices simultaneously. He will challenge the testimony of the police and ensure that the State, judge, and jury uphold the principle that you are not guilty until proven beyond a reasonable doubt. Contact Doug Murphy Law Firm, P.C. today to discuss your case.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.