Arrested for DWI at Under .08

Attorney Marsh
Can You Get Arrested for DWI at Under .08 in Texas?

The short answer is YES. I’m going to explain why in this blog post. Recently, one of my friends asked me this question so I figured I would write on this topic. I’m sure he’s not the only one who has had this question. People get arrested for DWI at under .08 all the time. It does come up somewhat regularly in Texas DWI’s. Maybe you’ve had a beer or two at dinner. Maybe you’ve had a few beers over the course of hours. Alcohol can be removed from your system at about the rate of one drink per hour. That can work to your advantage when you’ve been Stopped for DWI in Texas. However, you’re not in the clear just yet. DWI doesn’t just mean over .08. So, what is the legal definition of DWI in Texas?

What is the law on DWI in Texas? How Can the State Prove It?

I know this won’t be your favorite part to read but the DWI definition in Texas is written into the law. There are two ways that the State can prove that you were driving while intoxicated. Here’s what Texas Penal Code Sec. 49.01 says:

“Intoxicated” means:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

Many people seem to think that DWI in Texas is only Option B listed above (.08 or higher). This isn’t true at all. Some people have higher tolerances than others. I’m sure everyone has that friend who can drink a 6 pack and seem perfectly coherent. Just because that friend is coherent, doesn’t mean he’s not over the limit while driving or DWI.

What is “Normal Use of Mental or Physical Faculties”?

Well, that all depends on the individual. Let’s use an example. A woman named Jane is about 5’4″ tall and 120 lbs. Jane doesn’t drink very often at all but has a drink with dinner. Jane decides to drive home, but because she doesn’t drink very often, the drink hits her extra hard. Jane is pulled over by police for crossing the yellow line and taking a turn too wide. Not only that but it’s a No Refusal Weekend in Texas. She fails all the Field Sobriety Tests. She’s slurring her words, repeating herself, and she wobbles while walking slowly. Jane is eventually arrested for DWI. Her blood or breath test comes back  0.04BAC (half the legal limit).

Normal Use of Physical Faculties

Normal use of your physical faculties basically means your coordination and ability to control your body. Everyone has different abilities. Maybe Jane had knee surgery recently. Maybe she has a bad ankle. Standing on one leg and walking heel to toe may be more difficult for some than others. People can be naturally clumsy or uncoordinated. What I’m basically saying is, everyone has their own level of coordination. If that level of coordination is lost due to alcohol, you can be arrested for DWI. Alcohol can slow your reaction time and affect your ability to keep control of yourself and your vehicle.

Normal Use of Mental Faculties

Normal use of your mental faculties basically means your ability to think clearly, focus on the road, and make decisions on the fly while driving. Driving is considered a “divided attention” task. That is because you need to move your hands, feet, head, and body while thinking about road conditions, other drivers, and make predictions about your surroundings. While driving isn’t rocket science, alcohol can cloud your judgment (no explanation needed there I’m sure). You’ve probably seen or heard friends who say things that don’t make sense when they’re very drunk. They might even repeat themselves over and over again. Perhaps they forget part of the night or pass out quickly. These things can show that they’ve lost their ability to think clearly and react appropriately as needed.

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