Can I Be Arrested for DWI if My BAC is Under 0.08?
Many drivers are legally intoxicated even if they “pass” Breathalyzer tests.
Yes, you can be arrested for DWI if your BAC is under .08. The BAC limit is lower in some cases. It is .04 for commercial drivers, like truck drivers, and .01 for minors. Additionally, Texas has a per se chemical test law. A .08 result is conclusive proof of intoxication, at least in most cases. But the law does not work the same way in reverse. A result below .08 is not conclusive proof of sobriety.
Whether or not they involve chemical tests, DWIs may be the most serious misdemeanors in Texas, from a standpoint of direct and collateral consequences. We are not just talking about the financial costs, which usually exceed $10,000. Many people, such as potential employers, believe that people who “drive drunk” are untrustworthy people who make reckless decisions. DWI convictions also have serious immigration consequences. All these potential effects underscore the need to get a good Ft. Worth criminal defense lawyer on your side.
BAC Limit
We briefly mentioned the two main lower BAC categories in Texas above. Now, let’s break them down a little further.
The list of commercial drivers goes far beyond truck drivers. Taxi drivers, Uber drivers, and limo drivers are also commercial drivers, even if they aren’t carrying cargo or passengers. The category extends to informal commercial drivers. If Paul gives Mary gas money, Mary is arguably a commercial driver.
A “commercial driver” is a matter of status, not a matter of money changing hands. An unpaid church volunteer driving on church business could be a commercial driver in Texas.
As for minors, Texas, like most other states, has a zero-tolerance policy when it comes to underage drivers. A trace amount of alcohol, perhaps due to mouthwash or a sip of champagne at a wedding, is technically illegal.
Incidentally, in 2019, Utah lowered the BAC threshold to .05. No other states have followed suit. The general consensus is that a lower BAC limit increases the number of DWI arrests but doesn’t make the roads safer.
Circumstantial Evidence
Additionally, officers can arrest people for DWI based on circumstantial evidence, regardless of their BAC levels. Circumstantial evidence in a DWI usually includes field sobriety test results.
- Horizontal Gaze Nystagmus: The DWI eye test usually proves that a defendant has nystagmus (lazy eye). But alcohol is not the only cause, or even the leading cause, of nystagmus.
- One-Leg Stand: Most people with any mobility impairments whatsoever cannot stand on one leg for fifteen or thirty seconds. Additionally, a Ft. Worth criminal defense lawyer often successfully argues that fatigue or nervousness, rather than intoxication, prompted poor performance on the OLS.
- Heel-to-Toe Walk: Similar issues plague the HTW (walking a straight line) test. However, the list of flaws is even longer. For example, most people can only walk a straight line wearing athletic shoes.
These flaws matter a lot at trial, but matter little in terms of arrests. Police officers usually surmise that the defendant “failed” the tests, even if the defendant performs them almost flawlessly.
Speaking of trial, a sub-.08 BAC DWI case often puts a Ft. Worth criminal defense lawyer in the unusual position of upholding the Breathalyzer’s reliability. If the Breathalyzer is such an accurate gadget, then a sub-.08 BAC result is at least probable cause that the defendant is not intoxicated.
Count on a Savvy Tarrant County Attorney
A sub-.08 BAC result is not a get out of jail free card. For a confidential consultation with an experienced criminal defense lawyer in Ft. Worth, contact the Law Office of Kyle Whitaker by calling 817-332-7703 or going online now. Virtual, home, and jail visits are available.