The numbers from your blood alcohol concentration test hold a lot of weight in determining whether you will be charged with driving while intoxicated. The big number in almost every state is 0.08 percent BAC, which is the legal limit that determines whether you are intoxicated (Utah is the exception because it recently lowered its limit to 0.05 percent). However, there is more to BAC levels in Texas law than a simple 0.08 cut-off point. You can still be charged with DWI when your BAC is below the legal limit, and the level of the charge can increase depending on how much your BAC exceeds the limit.
Less than 0.08
The 0.08 percent BAC limit is based on the percentage of alcohol in a person’s bloodstream that it usually takes to impair their driving capabilities. Your alcohol tolerance may be different than that, depending on factors such as your:
If your BAC is above the legal limit but you show no signs of impairment, you are still considered to be legally intoxicated. If your BAC is below the legal limit but you do show signs of impairment, a police officer can still arrest you on suspicion of DWI if they believe that your impairment reached the level of intoxication. Your advantage in this scenario is that the prosecution is basing its case solely on subjective evidence from the officer’s observations, which is easier to dispute than scientific blood test results.
A recent poll by the Texas Medical Center Health Policy Institute suggests that more Texans are in favor of stricter laws for driving while intoxicated than the national average. According to the results:
60 percent of Texans support lowering the blood alcohol concentration limit to 0.05, as opposed to 54 percent of national respondents; and
48 percent of Texans support lowering the BAC limit to zero, as opposed to 46 percent of national respondents.
Approving a zero-tolerance BAC law is unrealistic, but a 0.05 BAC limit has precedence. Utah is set to enact the country’s first 0.05 BAC limit at the end of the year, which may encourage other states to do the same.
How much alcohol does it take to reach a 0.05 BAC? That depends on several factors:
A Texas man recently garnered attention when he contested his driving while intoxicated conviction by arguing that a Texas DWI law is unconstitutional. Specifically, he claimed that the 0.08 blood alcohol concentration limit discriminates against alcoholics. Neither the trial court nor the appellate court found the argument convincing, upholding the man’s conviction. There are reasons to question whether the BAC limit is an accurate measure of a driver's impairment. However, the defendant’s argument had little chance of succeeding because he was asking for special treatment, not equality.
The defendant was facing his fourth DWI conviction when he attempted to quash the charges by challenging the constitutionality of Texas’ DWI law. A first or second DWI conviction is a misdemeanor unless there are aggravating factors. A third DWI conviction is a third-degree felony, which may result in:
A recent report released by the National Academies of Sciences, Engineering, and Medicine recommends that all states lower the blood alcohol concentration limit to 0.05 for charges of driving while intoxicated or driving under the influence of alcohol. The report states that:
Deterioration in driving skills starts before people reach the 0.08 BAC limit; and
Countries that use a 0.05 BAC limit have seen a decrease in vehicle accidents.
To be clear, there are no signs that Texas is considering lowering the legal limit. However, Utah became the first state to adopt a 0.05 BAC limit with a law it passed last year. The change is scheduled to go into effect on Dec. 30. Depending on the results, other states may pass similar laws. If the federal government supports the new BAC limit, it may offer incentives to states that comply. The goal of lowering the BAC limit is to increase driver safety. There are a couple of reasons why it may instead increase the criminalization of drivers:
Inexact Number: A 0.08 BAC level is an attempt to create an objective measurement of when someone’s alcohol consumption has impaired his or her driving. It is the best estimate but not an exact line for everyone. Some drivers show no signs of impairment when their BAC is greater than 0.08, let alone 0.05. Lowering the BAC limit increases the number of people who are driving illegally, but not the number of dangerous drivers.
Lower Threshold: How easy is it to have a BAC of 0.05? It may take only one drink for a woman weighing 120 pounds. She may be able to drive home without drawing police attention if her driving shows no signs of impairment. However, a routine police stop or sobriety checkpoint may allow a police officer to notice the smell of alcohol on her breath. With a 0.05 BAC limit, there is an increased chance that a BAC test will result in an arrest.
Unfit Punishment: Though Utah lowered its BAC limit, it has not changed its penalties for a DUI conviction. An advisory council dismissed a suggestion that a lesser punishment should be created for drivers with a BAC between 0.05 and 0.08. There is some debate about whether having a 0.05 BAC impairs a driver more than using a phone while driving. A first-time distracted driving offense may result in a fine of $100 or less. A first-time DWI offense may result in thousands of dollars in fines and jail time.
Texas drivers should be familiar with the number 0.08. That is the blood alcohol concentration level at which someone is considered legally intoxicated. A breath or blood test result of 0.08 or higher will lead to an arrest and charge of driving while intoxicated. However, having a BAC that is less than the legal limit does not preclude a driver from a DWI charge. Texas police officers have the discretion to decide that a driver was legally impaired by an intoxicating substance, even if medical records do not prove it.
The Texas Penal Code states that police officers can identify intoxication in one of two circumstances:
The Law Offices of Sam H. Lock, with offices in San Antonio and Seguin, Texas, provides criminal defense representation for people charged with state and federal crimes throughout Texas and the United States, including San Antonio, Austin, El Paso, Midland, Pecos, Waco, Hondo, New Braunfels, Laredo, Kerrville, San Marcos, Boerne, and Del Rio, Bexar County, Guadalupe County, Comal County, Wilson County, Gonzales County, Kendall County, Bandera County, Caldwell County, Hays County, Travis County, Medina County, Blanco County, Burnet County, Atascosa County, Live Oak County, Nueces County, Uvalde County.