Can I Be Convicted of DWI With A BAC Below 0.08 Percent?

In drunk driving law, 0.08 is something of a magic number. It represents the blood-alcohol content at which a person is considered legally intoxicated and thus too drunk to drive. When a person is arrested on suspicion of DWI, it is common practice to take a blood or breath sample for BAC (Blood Alcohol Concentration) testing. If the results show a BAC of at least 0.08 percent, that is often enough for prosecutors to secure a DWI conviction.

But what if the test shows a BAC below 0.08 percent? Does that mean the defendant is off the hook? Not necessarily. While a BAC test is one method of securing a drunk driving conviction, it is not the only method. Prosecutors can use other evidence of intoxication, which is alternatively defined as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol” or some other controlled substance into the body.

Appeals Court:

Jury Can Infer Defendant’s BAC Based on Time Between Arrest, Blood Test

A jury may also take into account the fact that a BAC test administered several hours after the defendant’s arrest may provide a figure that is below 0.08 percent but still indicate legal intoxication. A recent decision from the Texas 11th District Court of Appeals, Robles v. State, provides a useful illustration of this point. In this case, a defendant received a 10-year prison sentence after conviction on a felony DWI charge.

But let’s back up a bit. This case began when an Abilene police officer responded to a report of a “major accident” at an intersection. When the officer arrived at the scene, he was told that one of the drivers had fled the scene on foot. The officer decided to pursue.

When the officer managed to locate the driver–the defendant–the officer said he noticed a number of signs of possible intoxication, such as bloodshot eyes and the smell of alcohol. The officer then decided to perform a series of field sobriety tests. Based on the results of these tests, the officer placed the defendant under arrest. A subsequent blood test revealed the defendant’s BAC was 0.063 percent, which was below the legal limit of 0.08 percent.

At trial, an expert witness explained to the jury that a person’s body “eliminates alcohol” at an average rate of between 0.015 and 0.025 percent per hour if they are a social drinker. Since the defendant’s blood test took place about three hours after the accident, the prosecution argued the jury could essentially infer the defendant’s BAC was above the legal limit when he was stopped and initially questioned by the officer.

On appeal, the 11th District agreed with this reasoning. The appellate court also rejected the defendant’s challenge to how the officer administered the field sobriety tests. Even if there were errors made during the tests, the Court said that only went to the weight of the evidence, and that was ultimately a decision for the jury to make.

Arrested for DWI in Houston?

Contact Texas Drunk Driving Lawyer Tad Nelson Today

Never assume that a BAC test alone will clear your name. If you are questioned or detained by police on suspicion of drunk driving, your best options are to remain silent and contact a qualified Houston DWI lawyer as soon as possible. Call the Law Offices of Tad Nelson & Associates today if you need to speak with someone right away.

Related: High BAC DWI Cases