Can I Be Charged With DWI if I am Under the Legal Limit for BAC?
Defendants with BACs under the legal limit can be charged with and convicted of DWI.
Yes, but under-the-limit BAC cases are much more complex than over-the-limit DWIs. Texas, like most other states, has a per se DWI law. Defendants with BACs above the legal limit are intoxicated as a matter of law. But the per se law only works one way. Defendants with BACs below the legal limit are not sober as a matter of law. Prosecutors can use circumstantial evidence to establish intoxication in these cases.
As a practical matter, prosecutors rarely pursue below-the-limit DWIs. But a good Ft. Worth criminal defense attorney never plays the percentages and hopes for the best. Even if officers release drivers at the scene, prosecutors could file DWI charges. So, if you were stopped for DUI, regardless of the outcome, always speak to a lawyer and avoid being blindsided by unexpected charges later.
Unapproved Tests
Usually, Tarrant County judges exclude the results of unapproved FSTs if a Fort Worth criminal defense lawyer makes a motion to do so. However, mostly for strategic reasons, attorneys often allow prosecutors to use unapproved test results. This technique often gives the state enough rope to hang itself.
Romberg’s balance test, the head-back, finger-to-nose test, is a good example. As an unapproved test, its results are usually inadmissible. However, this test could significantly undermine an officer’s credibility. This test measures three senses needed to maintain balance:
- Vision,
- Proprioception, and
- Vestibular function.
Most people, including most police officers, cannot pronounce words like proprioception, let alone explain the concept to jurors. This inability casts doubt on an officer’s ability to determine if a subject is intoxicated.
For the record, proprioception is the ability to know one’s body position in space. Vestibular function is the ability to know one’s head position in space.
The HGN test, which is part of the three-test battery, is usually an unapproved test for below-the-limit DWIs.
The follow-the-light horizontal gaze nystagmus test accurately determines if the subject has nystagmus, and alcohol intoxication causes nystagmus. But so do inner ear disorders, genetic conditions, problems with the eyes or brain, certain medications, congenital problems, strokes, head injuries, brain tumors, multiple sclerosis, and albinism. Head injuries, specifically childhood injuries, are the most common cause of nystagmus.
Because of the almost non-existent link between nystagmus and intoxication, most Tarrant County judges allow prosecutors to use HGN results to show probable cause, but not as evidence of intoxication.
Approved Tests
The two other “approved” tests have never been rated in a peer-reviewed scientific journal. They’re approved just because the government bureaucrats at the National Highway Traffic Safety Administration say so.
Additionally, these tests have several flaws. The heel-to-toe walk is a good example. Most people cannot walk a straight line heel to toe if they have any mobility impairments or if they’re wearing anything other than athletic shoes. These inherent flaws cast doubt on test reliability.
Moreover, officers usually administer unapproved tests first. Therefore, by the time they get to the ones that count, defendants are physically and mentally fatigued. The state must prove that intoxication, not fatigue or anything else, caused the defendant to fail the tests.
Speak to a Hard-Hitting Tarrant County Attorney
A below-the-limit BAC test is not a get out of jail free card. For a confidential consultation with an experienced criminal law attorney in Fort Worth, contact the Law Office of Kyle Whitaker. The sooner you reach out to us, the sooner we start working for you.