Can I Get a DWI in Texas if I'm Driving Under The Legal Limit

October 31, 2017

Most drivers in Texas know that they will be considered legally intoxicated if they drive with a blood alcohol concentration (BAC) level of 0.08% or greater that is found as the result of either chemical testing in the police station or a blood test. This BAC limit is the standard for all states as well, whether they use driving while intoxicated (DWI) or driving under the influence (DUI) laws. But having a BAC level greater than the legal limit is not the only prerequisite needed for a Texas highway patrol officer to make a DWI arrest. Indeed, it is entirely possible for a driver to be arrested for a DWI while under 0.08%. There are three circumstances that could permit an officer to make a legally justifiable DWI arrest without actually testing a BAC level over the limit:

  • Not having the normal use of your mental or physical faculties: Police officers can use some discretion when making the decision to arrest a driver for a DWI or not. If a driver is noticeably impaired, he or she can be arrested, regardless of their actual or tested BAC limit. Reckless driving habits – such as tailgating, speeding, not slowing down for turns, etc. – are often seen as indicators of noticeable impairment. Essentially, a driver who has had at least one alcoholic beverage and creates a danger on the road could be arrested for a DWI.
  • On-the-fence tests: BAC tests just below 0.08% – or 0.04% for commercial drivers – are seen as highly questionable by Texas law enforcement. The officer may be permitted to make a legal arrest if he or she has reasonable cause to suspect that the driver was operating a motor vehicle while the BAC level was still over the legal limit. According to the Texas Alcoholic Beverage Commission (TABC), it is assumed that a person’s BAC level will drop by about 0.015% each hour they do not consume an alcoholic drink. This drop rate will be considered by the officer when deciding to make the DWI arrest or not.
  • Zero tolerance laws: Texas is one of several states that has a zero tolerance law when it comes to minors under the age of 21 driving while intoxicated. In brief, if a minor’s BAC test result is greater than 0.000%, he or she is considered legally intoxicated and can be charged with a DUI. Zero tolerance laws can also apply to adult drivers over 21 if there is any trace of an illegal narcotic in their bloodstream at the time of arrest that could feasibly impair their driving ability.

Were you arrested for a DWI but your BAC level was recorded below the legal limit? You need to think about challenging that charge and saving your Texas State driver’s license from automatic suspension right away. Contact Tyler Flood & Associates and our Houston DWI defense attorney to request a free case evaluation with a trial-tested and experienced team.


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