DWI Under .08% in Texas

We all know that driving while intoxicated is illegal. But what if you've been out to dinner with friends and had a glass of wine, but you know you aren't drunk? If the police pull you over and your BAC turns out to be under the legal limit, they should let you go, right? Unfortunately, that's not always how it works in Texas. The biggest fallacy of in Texas law relating to DWI is that off you blow under the legal limit of a 0.08%--or your blood comes back below the legal limit of a 0.08%--you will be released and not arrested and/or charged. Unfortunately, this belief is wrong! You don't have to have a BAC of over 0.08% to be arrested or charged with DWI I Texas. In fact, there are some circumstances where you can face a Texas DWI with a much lower BAC, including:

  • The police make a subjective decision that you don't have the normal use of your physical or mental faculties,
  • You are under 21 and have any trace of alcohol in your BAC,
  • If you hold a Commercial Driver's License, or
  • The police believe you are under the influence of drugs.

Driving While Intoxicated in Texas

Under Texas law, you may be arrested for DWI if you drive a vehicle in a public place while intoxicated. “Intoxicated” means:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

Tex. Penal Code § 49.01(2) (2001). Breaking the law down, there are two ways you can face DWI charges in Texas:

  1. Blood Alcohol Content

If your BAC is over the legal limit of .08%, you are considered “intoxicated” under the law. If you hold a commercial driver's license, the legal limit is .04%. However, it's important to remember that BAC testing is not always accurate or reliable, making it important to have an experienced Texas DWI attorney representing you.

  1. Normal Use of Mental and Physical Faculties

Regardless of your BAC, if the police determine that you no longer have the “normal use of mental or physical faculties,” after using drugs or alcohol, they may consider you “intoxicated.” Whether you have the normal use of your faculties is a subjective determination made by the police. Of course, law enforcement officials can make mistakes. That's why a skilled DWI attorney can help.

What Happens During a DWI Stop?

When the police arrest you for DWI, if your BAC was below the legal limit, the prosecution will need to rely heavily on the arresting officer's subjective interpretations of your behavior to convict you in court. So, it's important to understand what happens during a DWI stop and how it can impact your arrest.

  1. The Traffic Stop

Despite what you see on TV, the police can't pull you over just for the heck of it. They also can't pull you over because they don't like the color of your car or your bumper stickers. Rather, to pull you over, the police must have “reasonable suspicion” that you committed a crime. Traffic violations like speeding, running a red light, swerving between lanes, or driving under the speed limit qualify as “crimes” that justify a traffic stop.

Once the police pull you over, they'll use their interactions with you to determine whether they should investigate further. If you are hostile, uncooperative, have bloodshot eyes, are slurring your words, or acting in a manner that leads the police to believe you may be under the influence of drugs or alcohol, they will ask you to complete one or more field sobriety tests.

  1. Field Sobriety Tests

If your demeanor or behavior during your traffic stop leads the police to believe you may be intoxicated, they will ask you to complete one or more field sobriety tests. These tests can be standardized or non-standard. However, the court typically won't allow non-standardized tests in court as evidence. Examples of non-standard tests might include:

  • Asking you to say the alphabet backward,
  • Counting backward,
  • Doing math in your head,
  • Closing your eyes and touching your nose.

Some of the standardized field sobriety tests include:

  • The Horizontal Gaze Nystagmus (HGN): The HGN test involves the involuntary jerking motion the eye naturally makes when you look to the side. Officers will be looking for whether your eye follows an object smoothly, distinct eye jerking when looking fully to the side, and eye jerking within 45 degrees of center.
  • The Walk and Turn: We've all seen the walk and turn on TV, with the suspected drinker walking a line like a tightrope. The test is supposed to evaluate your ability to finish tasks with your attention divided. To perform the test, you take nine steps, heel to toe, along a line. Officers will look for eight signs, including:
    • Taking the wrong number of steps,
    • Inability to balance while listening to instructions,
    • Beginning before the instructions are complete,
    • Stopping to regain balance,
    • Not walking heel-to-toe,
    • Stepping off the line,
    • Needing your arms for balance,
    • Improperly turning, and
    • Taking the wrong number of steps.
  • The One-leg Stand:

The one-leg stand requires standing with one leg six inches above the ground for 30 seconds. The officer will have you count by 1000ths while timing you. Law enforcement will be watching for:

    • Whether you use your arms to balance,
    • Whether you sway while trying to balance,
    • Hopping to keep your balance, and
    • Placing your foot down.

These tests can be challenging for people with health issues, hearing problems, disabilities, and more. It's important to remember that field sobriety tests are highly subjective. They rely on the individual judgment of the arresting officer, which can be faulty.

  1. BAC Testing

If the police believe that you “failed” the field sobriety tests, they will ask you to take a breath or blood BAC test. Typically, blood tests are more accurate, although they certainly aren't infallible. But if you're sure that you are not intoxicated, you may be better off requesting a blood test to ensure the most accurate result. Breath tests tend to be easier to challenge in court because they are less reliable.

Problems that can arise with BAC testing include:

  • Chain of custody issues,
  • Collection issues,
  • Storage issues,
  • Improper training of techs,
  • Improper collection.
  • Equipment that isn't properly calibrated or cleaned, and
  • Failing to retain a sample that can be rested.
  1. The Arrest

If your BAC is over the legal limit, the police will arrest you for DWI. But regardless of your BAC, if the police have probable cause to believe you were driving while intoxicated, they will arrest you. According to the U.S. Supreme Court, probable cause:

[E]xists where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

After considering the facts and circumstances, the police must have a reasonable belief that you've committed a crime. However, the circumstances must support a suspicion of your guilt – the police can't simply base a traffic stop on a gut feeling.

When a Lower BAC Becomes a DWI

There are a few situations where a BAC under .08% can still be a DWI conviction under the law without relying solely on subjective officer interpretations of your behavior. These situations can include minors driving under the influence, those holding commercial driver's licenses, and those driving under the influence of drugs.

  1. Minors Driving Under the Influence

Anyone who is legally intoxicated can face a DWI in Texas. However, drivers under 21 who drink and drive can also face charges for driving under the influence. Texas is a zero-tolerance state, meaning it's illegal for drivers under 21 to drive with any detectable amount of alcohol or drugs in their system, regardless of whether they are intoxicated. This offense is called driving under the influence, driving under the influence of alcohol, DUI, or DUIA.

Under the statute, “[a] minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor's system.” See Tex. Penal Code § 106.41 (2009). The minor can also face DWI charges if they are legally intoxicated under Texas Penal Code § 49.01.

  1. DWI for a Commercial Driver's License

If you have a commercial driver’s license, you can face charges for a DWI with a BAC under .08%. The legal BAC limit for you is .04%, even if you are driving your personal vehicle at the time. In some cases, a single drink can put you over this legal limit. Holders of CDLs also have some unique regulations to follow. If you hold a CDL and refuse a BAC test, you may face repercussions. Moreover, you can lose your CDL even without a DWI conviction – even a deferred sentence can affect your CDL.

  1. Driving Under the Influence of Drugs

In Texas, a DWI doesn't have to involve alcohol. You can face arrest if you are intoxicated because of drugs, alcohol, or a combination of the two. The statute states that the law considers you intoxicated for:

[N]ot having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body […].

Tex. Penal Code § 49.01 (emphasis added). There is no definitive blood or breath test for drug intoxication. While the police can test your blood for specific controlled substances, there are no standardized levels at which each drug is considered “intoxication.” As a result, the police will often try to use a blood test showing the presence of drugs as evidence of intoxication, even if it isn't. In a drug DWI situation, an expert in Texas DWI law can help.

DWI Defenses for Lower BAC

Don't forget that an experienced Texas DWI attorney will know the best approach to defend your case. An arrest for a DWI does not equal a conviction. Some of the possible defenses your attorney may raise can include:

  • Challenging reasonable suspicion for your initial traffic stop,
  • The police officer didn't follow protocols for the field sobriety tests,
  • Your field sobriety tests results were affected by your health, disability, clothing, road conditions, or the weather,
  • You weren't legally drunk, and
  • There was no probable cause for your arrest.

Your attorney may also raise other constitutional defenses such as:

  • Failing to notify you of your Miranda rights, such as the right to an attorney or the right to remain silent,
  • Unlawful search and seizure, or
  • Lack of probable cause or reasonable suspicion.

Hire a Board-Certified Texas DWI Expert

If you're facing a DWI charge, particularly if your BAC was below .08%, you shouldn't let the police or the prosecutor railroad you into a conviction. You need a defense attorney who is an expert in Texas DWI defense. Attorney Doug Murphy is one of only two Texas attorneys who is Board Certified in both DWI Defense and Criminal Law, making him a recognized specialist in his fields. Attorneys only gain board certification through the recommendation of their peers and judges in the community, so you know Doug has the respect of the legal community.

Doug has defended thousands of Texans facing DWIs over the years. He has more than 20 years of experience in DWI defense and criminal defense litigation in Texas. On top of that, Doug is recognized by his peers as one of the best in his field. Best Lawyers in America named Doug the “Lawyer of the Year” for 2021 for DWI defense, and Woodward White recognized Doug Murphy in the US News & World Report list of the Best Lawyers in America from 2013-2021. Doug can help guide you to a path forward too. Give the Doug Murphy Law Firm a call today at 713-229-8333 to set up a consultation.

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