Hello everyone, this is Deandra Grant, and this is the Ask Deandra video series, where I answer the most commonly searched internet questions about DWIs in Texas. It corresponds with my blog series, Ask Deandra, which is on my website. If you want more details about what we’re going to talk about today, you can look down in the description of this video and you will see a link to the blog that corresponds.
The question today is: can I be charged with a DWI if I’m under a 0.08? And the answer is absolutely yes. Let me explain why.
The law in Texas allows the state to prove, or attempt to prove, intoxication in three ways. One way is proving that you did not have the normal use of your mental faculties because of some substance that you ingested. It does not have to be alcohol. It could be alcohol, an illegal drug, a legal prescription, pretty much anything you ingest that makes you no longer normal mentally could be the basis of a DWI if you’re driving under that substance.
Now, the second way: not having the normal use of your physical faculties because of something that you ingested. Could be alcohol, could be NyQuil, could be cocaine, could be marijuana, could be Ambien. Whatever you ingested made you not normal physically.
So we’ve got two ways so far: not normal mentally because of a substance, not normal physically because of a substance. Notice that neither one of those two things requires any sort of number.
Now, the third way is they can prove that you had an alcohol concentration of 0.08 or greater at the time you’re driving.
So, three different ways. Let’s say the police never ask you for a test, or they ask you and you say no, and they don’t get a warrant to get your blood. They’ve got a DWI they’re trying to prosecute, but they do not have any sort of chemical test result. They can still prosecute that case. They’re just going to go under the not-normal-mentally or not-normal-physically definitions instead of the 0.08 or greater.
What happens if you take a test and it’s under a 0.08? Well, a couple of things. Number one, they may still go forward on the mentally or physically part. Another option is they could say, well, you didn’t take that test until 2 hours after you were driving, so in all likelihood your alcohol concentration was higher at the time you were driving, which would have put you over a 0.08 when you were driving the car. That’s going to be their argument.
That’s not always a good argument for the state. It really is going to depend a lot on what you look like on video, what kind of statements you made, and what your driving was like. Why did they pull you over? Did they pull you over because you had an expired registration or an expired license plate, or did they pull you over because you were driving all over the road? All of those factors play a role. But they can 100% prosecute you when you are under a 0.08.
Does it happen? It absolutely does happen. I tried a case a few years ago in Collin County that was a 0.03. I’ve tried 0.07s. I’ve tried 0.05s. It really just depends on the DA’s office and what their position is on that, and what the rest of the facts of the case may show that they think makes their case better than perhaps I think it is. So, yeah, they can prosecute you.
Hope you find that helpful. If you want more information, you can read more about this in the blog post, which is linked in the description. Thanks, and we’ll see you next time.
