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Even those with a 0.00 BAC may be arrested for DWI in Texas

If you ask virtually anyone about what it takes to be arrested for drunk driving, most people would tell you that it would be necessary to have a blood alcohol content (BAC) at or above the legal limit of .08 percent. However, under Texas law, this is only one way that a person can be arrested for DWI. As a recent news story highlighted, it is possible to be arrested for drunk driving, even if you do not have any alcohol in your system.

The news story reported that an Austin man was pulled over in 2013 for allegedly running a stop sign. During the course of the stop, the police reported that they observed the driver acting in an inebriated manner. The police administered field sobriety tests to the driver, during which he swayed and used his arms for balance. Not convinced that the driver was able to operate his motor vehicle safely, the police arrested the man.

At the station, the driver blamed his performance on the tests on poor balance and consented to take a breath test. The breath test results showed that he had a BAC of 0.00 percent, indicating that alcohol was not in his system. The driver also requested a blood test, which came back negative for drugs or alcohol. Despite this evidence, the driver spent a night in jail and fought for a year to have his arrest expunged from his criminal record.

Is this legal under Texas law?

Although these events may seem like an isolated incident, it is fairly common across Texas for drivers to be arrested for DWI, even if they pass a breath or sobriety test. The reason is because police have a significant amount of discretion under the law to determine whether a driver is sufficiently sober to operate a motor vehicle.

Aside from having a BAC of .08 percent or above, drivers may be legally considered to be intoxicated if their mental or physical faculties are impaired from using alcohol or drugs (or a mixture thereof). Since the determination of whether a driver's mental or physical faculties are impaired is largely based on the observations of the officer when the driver has a BAC below .08 percent, it is possible to be arrested if the officer believes that your faculties are impaired.

However, in order to support a DWI conviction of those with a BAC below .08, the officer must introduce evidence proving that the driver was intoxicated, such as erratic driving, slurred speech or lack of coordination. If this is not done, the charges may be dismissed.

If you have been arrested for DWI in Texas, you face heavy fines, license suspension and a loss of your freedoms. As a result, it is best to consult with an experienced criminal defense attorney as soon as possible. An attorney can review the circumstances of your arrest and present a defense that will lead to the best possible outcome.