Can I Be Charged with DWI in Texas if I Blow Less Than .08%?

man drinking alcohol while driving

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One of the biggest misconceptions Texas drivers have is that you cannot be charged with driving while intoxicated (DWI) if you blow below the legal limit.

In Texas, the legal limit for blood alcohol content (BAC) is .08%. If a breath test shows that your BAC level exceeds the legal limit, you are presumed to be intoxicated and can be charged with DWI.

If you have been arrested for impaired driving after blowing less than .08%, do not hesitate to contact a Williamson County criminal defense lawyer to ensure that you avoid a DWI conviction.

What Field Sobriety Tests Can the Police Use to Determine BAC?

If you are pulled over, and a police officer has a reasonable belief that you are impaired by alcohol or drugs, you may be asked to undergo preliminary breath testing (PBT) to measure the presence of alcohol in your system.

PBT is not the only test the police can use when you are stopped and there is a reasonable suspicion that you may be driving under the influence.

The police may use a combination of field sobriety tests to determine whether to charge you with DWI or not. Even if you blow under the legal limit and pass a PBT, you may still get arrested for DWI.

A PBT is a portable breath test device that can be used to determine a person’s BAC on the roadside. However, PBTs have a bad reputation because they are often unreliable and inaccurate.

Nonetheless, the police use PBTs to determine if a driver may be intoxicated to request further testing. Under Texas Penal Code $49.01, you may be deemed intoxicated if you lack the normal use of mental or physical faculties due to the introduction of alcohol or drugs (prescription, over-the-counter, or illegal) into your body.

In other words, you do not necessarily need to have a BAC of .08% or higher to be charged with DWI in Texas.

Can I Get Arrested for DWI if I Blow Under the Legal Limit?

The police can perform field sobriety tests if you do not pass a PBT or blow under the legal limit but exhibit signs of intoxication. Field sobriety tests are used to confirm the officer’s suspicion that you are impaired by alcohol or drugs.

Even if you blow less than .08%, which is the legal limit in Texas, the field sobriety tests can be used to test your use of mental and physical faculties. Typically, field sobriety tests are comprised of the following standardized tests:

  1. The walk-and-turn test

  2. One-leg stand

  3. Horizontal gaze nystagmus (HGN)

When you perform these field sobriety tests, the police officer will look for signs that you do not have the normal use of mental and physical faculties to arrest you for DWI. This can happen even if you blow below the legal limit.

What Are the Signs of Intoxication to Charge You with DWI in Texas?

As mentioned earlier, you can be arrested for DWI even if your BAC does not reach or exceed the legal limit. Under Texas law, a driver can be charged with DWI if they lack the normal use of mental and physical faculties.

However, what constitutes “normal” mental and physical faculties may vary from person to person. For this reason, you may not be actually impaired even if the officer thinks that they noticed signs of intoxication.

Usually, the police are looking for the following signs of intoxication to arrest a driver for DWI:

  • Watery or bloodshot eyes

  • Inconsistent speech

  • Slow or slurred speech

  • Irrational behavior

  • Combative or aggressive behavior

  • Being disoriented

  • Confusion

  • Odor of alcohol

  • Flushed face

  • Loss of balance

  • Tripping

  • Memory problems

However, being pulled over by the police can be a stressful and intimidating experience. That’s why a person may panic, behave irrationally, have a flushed face, inconsistent speech, or exhibit other signs of “intoxication.”

In addition, some of the signs of alcohol impairment may be symptoms of medical conditions. For example, a person may fail a one-leg stand test if they have obesity.

Many other factors can negatively affect your mental and physical faculties during a traffic stop. For this reason, it is imperative to speak with a knowledgeable criminal defense lawyer to help you prove that your performance of field sobriety tests cannot be admissible as evidence of your “intoxication.”

Contact a Williamson County Criminal Defense Lawyer

If you have been arrested for DWI even though a breath test showed less than .08%, you need to speak with a skilled attorney. Many defendants who blow less than .08% mistakenly believe that they can easily defend themselves without a lawyer and have nothing to worry about.

In reality, the fact that you were charged with DWI means that you should take the situation very seriously, no matter if your BAC level was over or under the legal limit.

It is not uncommon for drivers to be convicted of DWI after blowing less than .08% or even without providing any breath sample to the police. Whether or not you can avoid a DWI conviction following your arrest depends on:

  1. The facts and circumstances of your unique case; and

  2. The skills of your Williamson County criminal defense lawyer.

Often, a defendant can benefit from fighting against the DWI charge instead of pleading guilty. Pleading guilty – even when you do not agree with the charges – may seem easier, but it is harder to live with a DWI conviction on your record than without one.

You need to speak with a knowledgeable criminal lawyer to discuss your unique case and determine if you have a defense strategy to convince the jury to dismiss the charges.

At The Law Office of Brett H. Pritchard, our experienced lawyers are committed to conducting an in-depth investigation in your case to help you avoid a conviction. Just because you have been charged with DWI does not necessarily mean that you will be convicted. Let our skilled lawyers fight for your rights and interests. Call 254-501-4040 to book a free consultation today.
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