Can I Be Charged With a DWI if I Was Under the Legal Limit But Impaired?

Alcohol impairment cases could, but usually don’t, hold up in court.

Yes, but these cases are difficult to prove in court. Texas, like most other states, has a per se DWI law. Drivers with a BAC level above the legal limit, which is usually .08, are intoxicated as a matter of law. But the per se law does not work the same way in reverse. Drivers with a BAC level under the legal limit are not sober as a matter of law. The state can still use circumstantial evidence to obtain a conviction. More on that below.

Generally, circumstantial evidence often doesn’t hold up in criminal court. The burden of proof (beyond a reasonable doubt) is too high. If a Ft Worth criminal defense lawyer chips away at this circumstantial evidence, a favorable resolution, such as a not guilty verdict at trial, is often just around the corner. Attorneys also represent DWI defendants in ancillary matters, such as ALR driver’s license suspension hearings and probation revocation matters.

Field Sobriety Tests

The National Highway Traffic Safety Administration has approved three field sobriety tests for use in court. A Ft Worth criminal defense lawyer can often exclude the results of unapproved tests, such as the head back, finger-to-nose test. The three approved tests, and some of their weaknesses, are:

• Horizontal Gaze Nystagmus: Under controlled conditions, the follow-my-finger DWI eye test accurately identifies nystagmus, a condition also known as lazy eye. But officers don’t conduct roadside HGN tests under controlled conditions. Additionally, alcohol intoxication isn’t the only cause, or even the leading cause, of nystagmus.
• Walk and Turn: The heel-to-toe walk test is a divided attention test that gauges the subject’s physical dexterity, or lack thereof, and mental acuity, or lack thereof. Intoxication clues include failure to follow directions and using hands or arms for balance. Most people cannot walk heel to toe drunk or sober, unless they’re wearing athletic shoes.
• One Leg Stand: The raising-one-leg test is another divided attention test. Officers usually administer this test last. By that time, most subjects are physically and mentally fatigued, especially if the officer forced them to perform unapproved tests. At trial, the state must prove that intoxication, not fatigue or a mobility impairment, caused the defendant to fail this test.

Officers invariably testify that the defendant “failed” all three tests, even if the defendant commits minor technical violations, like starting the WAT on the wrong foot. At trial, an unbiased jury, not a biased officer, decides if the defendant passed or failed these tests.

Consumption Evidence

If defendants assert their Fifth Amendment rights and refuse to perform field sobriety tests, the state must rely on weak physical evidence and the defendant’s statements.

This physical evidence includes physical symptoms, such as bloodshot eyes and an odor of alcohol. This evidence often holds up in civil court alcohol-involved collision cases. But it doesn’t cut the mustard in criminal court. The burden of proof is much higher in criminal court.

“I only had one or two beers” statements are much stronger circumstantial evidence of impairment in DWI cases. Alcohol impairment begins with the first drink. Still, the defendant’s statements, by themselves, usually aren’t enough to prove guilt beyond any reasonable doubt.

Connect With a Savvy Tarrant County Attorney

Chemical tests aren’t necessary in DWI cases. 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. The sooner you reach out to us, the sooner we start working for you.