Help! My blood/breath test was less than .08 and they are still charging me with DWI!

So, you are on your way home after meeting a couple of buddies to watch the big game after work. You grab a bite to eat and have a couple of beers. It has been a long day and you are just a couple of blocks away from home when you see the red and blue lights in the rearview mirror. You rolled through that stop sign. Or maybe you were going 40 in that 30 M.P.H. zone. Or you neglected to realize that your taillight was out.

The officer smells alcohol on your breath and decides to do a DWI investigation. In cumulates in your arrest and the police’s request for a sample of your breath or blood. You are confident that you were not intoxicated and consent to a breath test. (Against my advice, read my No Refusal Weekend post!) Or maybe, you rightfully refuse and they get a warrant and draw your blood.

Either way you await the test result, and it comes back … under the legal limit! As most people know the legal limit in Texas is .08. So maybe it was .06 or .04 or (gasp) .00. I have recently represented clients with all three of these test results, and in all three cases the State attempted to continue with their prosecution of my client even after the test results were returned.

So, how is this possible if the legal limit is .08? Well first of all, there are two possible ways that the State can attempt to convince a jury that you were intoxicated. First, is that they can present evidence of a breath or blood test showing an alcohol concentration of .08 or higher. Second, and known to far less people, is that they can present evidence that you have lost the normal use of your mental or physical faculties by reason of the introduction of alcohol or a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into your body.

So when you consider the two avenues the state has to prove intoxication, it really opens them up to several arguments. The State could argue some or all of these:

You may have been .06 at the time the test was actually done (which is oftentimes several hours after the stop), but you were .09 or .10 or .12 when you were actually pulled over. The State will attempt to use something called retrograde extrapolation to argue that your alcohol concentration was higher at the time you were actually driving. This is a complex and fact intensive inquiry and it is imperative that you have an experienced attorney who knows how to refute such an argument.

You may have been .04 at the time of the offense, but this amount was sufficient to cause you to lose control of your mental or physical faculties due to the particular circumstances of your situation. The State may argue that the FSTs that the officer says you failed, or your incoherent answers to his questions, or the “totality of the circumstances” prove your intoxication despite the low test result.

You may have a .00 because you were intoxicated by something other than alcohol. Maybe an illegal drug, maybe a prescription drug, maybe a combination of different substances. It is important to remember that alcohol is not a required to prove you are intoxicated.
The reality is that the State rarely just decides to dismiss or drop prosecution of a case based solely on the results of a blood or breath test. However, it is important to remember that it is always the State’s burden to prove their case beyond reasonable doubt. Just because the State chooses to try to prove their case, does not mean that they will actually convince a jury. In cases like these it is essential that you retain an experienced, trial-ready attorney to represent you and expose the weaknesses and inconsistencies in the case against you.