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Under the Limit DWI

You’ve seen the image countless times. An officer pulls over a suspected drunk driver and arrests them based on a high blood alcohol concentration (BAC). This scientific evidence is enough probable cause for an arrest and possible DWI charges. However, were you aware that you can be charged with DWI without ever reaching the legal limit of .08 BAC?

Officers can arrest people they suspect are driving drunk if they have enough probable cause to do so. Unfortunately, the standard for probable cause for DWI is incredibly subjective. If an law enforcement officer believes you exhibit traits that your physical and mental faculties are impaired, then they can lawfully arrest you. Even if you have passed DWI chemical testing such as a breathalyzer test or blood analysis.

If you or someone you know has been charged with DWI, we urge you to get in contact with an experienced criminal defense attorney immediately.

Austin Attorney Explains Under the Limit DWI

Due to the vague probable cause standard for DWI, officers can arrest people who are under the drinking limit for drunk driving. Presenting certain behaviors or failing flawed field sobriety tests are some common ways officers arrest people who aren’t under the influence. If you or someone you know has been arrested for an under the limit DWI, then contact The Law Office of Kevin Bennett.

Kevin Bennett is an experienced DWI attorney with years of practice under his belt. He approaches each client with compassion but is aggressive when it comes to the courtroom. To learn more about attorney Bennett and your legal options, call (512) 476-4626. We will set up an appointment with you to discuss your case in detail.

The Law Office of Kevin Bennett represents people throughout the greater Travis County area including Lago Vista, Pflugerville, Bee Cave, Del Valle and West Lake Hills.

Overview of Under the Limit DWI in Texas


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Can I Get Arrested for DWI If I’m Under .08 BAC in Texas?

The majority of states in the nation have a legal limit of .08 blood alcohol concentration (BAC). If you have a BAC of .08 or higher, then law enforcement has enough probable cause to arrest you for driving while impaired (DWI). What many people don’t know is that you can be arrested for DWI even if chemical testing shows you are under the legal limit.

In Texas, an officer can charge you with DWI if they believe your physical and mental faculties are impaired by controlled substances or alcohol. This can happen even after you’ve passed a portable breath test (PBT) or breath analysis at the police station.

An officer may ask you to submit to certain field sobriety tests after you passed a PBT or breath analysis at the station. These physical exercises have no basis in science and aren’t even accepted into the court as evidence unless it’s one of the three standardized field sobriety tests (SFST). These standardized tests include the following:

  • Walk-and-Turn (WAT) – Police officers may have you perform a walk-and-turn to test your physical faculties. You will be asked to take nine heel-to-toe steps along a straight line. At the end of the line you must turn on one foot to take another nine heel-to-toe steps back. Perfectly sober people have failed WAT tests due to external factors such as age, physical ability or terrible lighting.
  • One-Leg Stand (OLS) – Another common field sobriety test is the one-leg stand. A police officer will ask you to stand on one foot about six inches off the ground. Typically, you’ll be instructed to count aloud for 30 seconds in the thousands. You can fail the OLS test because of a variety of outside factors. Some of these include fatigue, disability, or extreme nerves.
  • Horizontal Gaze Nystagmus (HGN) – A lesser known sign of intoxication is the involuntary jerking of the eye known as nystagmus. Law enforcement uses the horizontal gaze nystagmus to measure this phenomenon in DWI stops. Law enforcement will hold an object 12 to 15 inches away from the driver’s eyes. They will then slowly move the object side to side and ask you to track it with your eyes. If you’re impaired by drugs or alcohol, the test is supposed to show if your eyes are in nystagmus. Many factors can skew HGN test results including loud noises, inclement weather or heavy traffic.

All three of these tests have only been tested by the National Highway and Traffic Safety Administration (NHTSA). Not to mention, the testing conducted by NHTSA isn’t frequent and has been rebutted by several scientific experts. The physical exercises results can easily be skewed by outside factors such as weather or age but are also incredibly subjective. What one officer thinks is clearly an intoxicated person may not be the same as another police officer.


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Issues with DWI Chemical Testing

You could be arrested on DWI charges due to faulty lab or PBT results. DWI chemical testing is by no means a flawless process. The equipment involved must be maintained and collaborated monthly to function. The testing process itself can get complicated and if there’s a weak chain of command, it can result in human errors such as contaminated or poorly stored samples. These and other factors have shown that DWI chemical tests shouldn’t be taken seriously at face value without some speculation.

Listed below are some common issues with DWI chemical testing.

  • Diluted samples;
  • Contaminated samples;
  • Mishandled samples;
  • Poorly maintained equipment;
  • Old outdated equipment;
  • Unsupervised test administrators;
  • Unqualified personnel;
  • Improper procedures;
  • Results were determined by an unqualified laboratory; and
  • Tampered test results

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What Should I Do If I’m Pulled over for DWI?

The risks associated with DWI and field sobriety testing are incredibly great. It’s an unfortunate reality that people who are under the limit can be just as easily arrested as a person who is incredibly inebriated. Because of these factors, many attorneys would urge you to not submit to any DWI chemical or field sobriety testing at all.

It’s important to understand that refusing DWI testing does have its consequences. A DWI refusal is in direct violation of implied consent laws, which state a person must submit to chemical testing by law enforcement if they use Texas public roads. Your license will be administratively suspended for one year because of the refusal. In addition, the officer may arrest you anyway because they believe your refusal to comply is a sign you’re intoxicated.

No one wants to be arrested or have their license suspended. However, it’s much easier to handle a DWI refusal than DWI charges. You can contest your license suspension within 15 days after you receive your suspension notice if you file a request for an administrative license revocation hearing. At the hearing, you can contest why you should retain your driving privileges and obtain a restricted license that will allow you to drive for certain activities.

If the officer charges you with DWI for refusing, the case may not proceed very far because the prosecution will have no concrete scientific evidence or footage of you performing field sobriety tests. It may lead to reduced charges or even a dismissal due to lack of evidence.


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Additional Resources

Instructor Guide to DWI Testing – Visit the official website of the National Highway Traffic and Safety Administration (NHTSA) to access their instructor guide for DWI detection. Learn more about standardized field sobriety tests, NHTSA data and signs officers look for.

DWI Laws in Texas – Visit the official website for the Texas Penal Code to learn more about driving while intoxicated offenses. Access the site to learn more about the penalties, sentencing conditions, admissible defenses and other related offenses.


DWI Lawyer for Under the Limit Arrests in Travis County, Texas

If you or someone you know has been arrested for an DWI, it’s time you have a plan of action. Hiring an experienced attorney can significantly increase your chances of reducing or dismissing your case. Find not just an attorney, but a legal partner with The Law Office of Kevin Bennett.

Attorney Kevin Bennett has the experience and resources needed to fight for your charges. Contact him now at (512) 476-4626 to set up your first consultation free. The Law Office of Kevin Bennett represents people throughout the greater Travis County area including Austin, Lago Vista, Pflugerville, West Lake Hills, and Bee Cave.


This article was last updated on September 27, 2019. 

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