Is a Lower Alcohol Absorption Rate a Defense to DWI?

Posted by Doug Murphy | Jan 26, 2023 | 0 Comments

So, you're facing a charge for driving while intoxicated in Houston. It happens to many people after a few drinks with dinner or out at the game. But maybe you're sure that you weren't intoxicated, and the BAC test the police gave you is just wrong. What if your absorption rate for alcohol is lower than most people's? Can you use this as a defense for a DWI in Texas?

What is Driving While Intoxicated in Texas?

You can get arrested for DWI in Texas even if your blood alcohol content is below the .08% legal limit. Under Texas law, the definition of “intoxicated” extends beyond just your BAC. The Texas statute states that someone is intoxicated if they:

  • Not having the normal use of either your 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 having an alcohol concentration of 0.08 or more.

Tex. Penal Code § 49.01 (2001). In other words, you could face an arrest for DWI in Texas if you are driving a motor vehicle in public and your BAC is over .08%, .04% for commercial driver's license holders, or you don't have the normal use of your mental or physical “faculties.” Whether you have the use of your mental or physical faculties is a subjective standard.

Your first DWI in Texas is typically a Class B misdemeanor. A Class B misdemeanor is punishable by up to $2,000 in fines, 180 days in jail, a one-year license suspension, and a mandatory $3,000 administrative fine. But aggravating circumstances such as a BAC over .15%, having a child in the car, prior DWI convictions, or causing an accident, injury, or death can increase these penalties dramatically.

Alcohol Absorption Rate

Your absorption rate is how quickly your body absorbs alcohol into the bloodstream through your stomach and small intestines. As the alcohol enters your bloodstream, your BAC will increase. Many factors can affect your alcohol absorption rate. Some of the most common include:

  • What you've eaten and how much: If you have an empty stomach, your body will start absorbing alcohol into your bloodstream right away. Having a full stomach before you begin drinking will help keep your absorption rate down. The composition of the food can hugely impact and slow absorption of alcohol.
  • Your biological sex: Women don't produce as much dehydrogenase as men, the enzyme that begins to break down alcohol in your stomach. So, the alcohol absorption rate for women is typically higher than for men.
  • Your weight and body type: The lower your weight, the faster your body will absorb alcohol. Bodies with a higher percentage of body fat will also absorb alcohol faster.
  • Menstruation: Hormone levels can affect alcohol absorption, and women will absorb alcohol more quickly in the day or two before beginning menstruation.
  • Fatigue: If you're overly tired, your body will absorb alcohol at a faster rate than it normally would.
  • Dehydration and illness: If you're dehydrated, your body will absorb alcohol faster, and your liver will have a harder time breaking it down. If you are ill, you tend to be dehydrated and absorb alcohol faster as well.
  • The strength of your drink and how fast you drink: The more alcohol you have available to your body, the more quickly it will absorb into the bloodstream.
  • Health conditions: Some health conditions and medications for diabetes, high blood pressure, seizure disorders, and others will affect how quickly your body absorbs alcohol.
  • Genetics: Some people produce more dehydrogenase, the enzyme that breaks down alcohol in your stomach, than others. This affects your rate of alcohol absorption into the bloodstream.

Low Absorption Rate as a DWI Defense

Once you have a BAC of .08% or higher in Texas, the police and the law presume that you are intoxicated. In actuality, two people with the same amount to drink can have the alcohol affect them in very different ways. One could be fine to drink, and the other could be unsafe and no longer have the use of their physical and mental faculties. This is because body type, weight, health, genetics, and so many other factors affect each person's rate of alcohol absorption.

Your slow alcohol absorption rate can also hurt you in a DWI stop. For example, if you are fine to drive home after a few drinks at the bar and you have a low alcohol absorption rate, if the police stop you, run a field sobriety test, and then wait more than an hour to conduct a blood BAC test, your body could continue to absorb alcohol during that hour and your BAC could be much higher than it was when the police stopped you.

Hire an Expert in Texas DWI Law

If you're facing a Houston DWI and you believe that your rate of alcohol absorption affected your arrest and BAC, your defense will be complex, and you need an expert in DWI law defending you. Attorney Doug Murphy is an expert in DWI Defense and Criminal Defense Law with extensive experience defending complex DWI cases. Doug holds Board Certifications in Criminal Defense Law from the Texas Board of Legal Specialization and DWI Defense from the National College for DUI Defense and accredited by the Texas Board of Legal Specialization and the American Bar Association. These certifications make him an expert in these two specialty areas of law.

Doug is also well regarded by his peers in the Houston area, as evidenced by U.S. News and World Report recently naming Doug to the Best Lawyers in America list and was named Lawyer of the Year in 2021 and 2023 for DWI defense in Houston. Doug earned this recognition through the nominations and votes of his fellow Houston attorneys. Doug and the skilled and experienced team at the Doug Murphy Law Firm have been defending complex DWI cases for years, and they can help you too. Find out why the Houston media calls Doug the “drinking driver's best friend.” Contact Doug and his skilled team online or call them at 713-229-8333 to schedule your consultation.

About the Author

Doug Murphy

Doug Murphy is one of only two Texas lawyers Board Certified in Criminal Law by the Texas Board of Legal Specialization, and also in DWI Defense by the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization.


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