If you have been arrested for DWI in the Houston area, it is highly likely that you have given a breath or blood sample. Typically, for a first-time DWI, if you are arrested, the police will ask you to give a sample of your breath. When you give a sample of your breath, the results will be known right away. If your breath result is under the legal limit, it is possible that you will not be arrested (as will be explained below, you could still be charged even with a result under the legal limit). If you refuse to give a breath sample, it is very likely that the police will obtain a search warrant for your blood. But what happens if the police took your blood and the results come back under the legal limit?
When the police take your blood after a DWI arrest (whether voluntarily or whether they obtained a search warrant for your blood), the blood is sent to a lab to be tested. Typically, the labs that test blood in the Houston area are police labs, but on occasion, blood in a DWI case could be sent to a private lab. In either case, blood results will take several weeks or even months to be received by the District Attorney. In the Houston area, you will usually have to appear in court even though your blood results may have not been received.
Of course, in a DWI case, blood results are used by the District Attorney to attempt to prove that a defendant was intoxicated. Under Texas law, intoxication in a DWI case is defined as having a blood alcohol concentration of .08 or higher or the loss of the “normal use” of mental or physical faculties.
If your blood results come back under the legal limit, there are several things to consider. The first is that even though your blood might have been under the limit at the time your blood was drawn, it is possible that you were above the legal limit at the time that you were driving, which would be the meaningful time for purposes of a DWI. Texas is a “time of driving” state, which means that in a DWI what is important is what your blood result was at the time that you were driving, not at the time that the blood was drawn.
If your DWI case was to go to trial, an expert would attempt to estimate what your blood would have been at the time that you were driving by taking into account several factors including what you drank, how long ago you drank, your gender, your weight, whether you ate, and other factors. As you can imagine this process is very imprecise and gets less accurate the more time goes by.
The next thing to consider is that a person could be convicted of DWI without having a blood result above .08 (or even without a blood result at all). As noted, one definition of intoxication for purposes of the DWI statute is the loss of the normal use of a person’s mental or physical faculties.
A blood result is not required to prove the loss of normal use of mental or physical faculties in a DWI case. To prove a loss of normal use, police officers will testify about their observations. Under their DWI training, police officers will look at a suspect’s driving, behavior, statements, appearance and performance on balance tests to form an opinion about whether a suspect has lost the normal use of his or her mental or physical faculties.
If prosecutors do not have a failed blood test to use in a DWI trial, they will put particular emphasis on the balance tests. There are three balance tests that the police typically use in DWI cases and when a suspect “fails” the test, police officers are taught that a person has likely lost the normal use of their mental or physical faculties (an experienced DWI attorney can successfully challenge the administration of the tests and the officer’s conclusion that the results show a defendant is intoxicated).
In short, it is possible for a person to be convicted of DWI even though a blood test has a result under .08. However, in many cases, prosecutors may not wish to go forward with prosecuting a case with a blood result under .08.
Most prosecutors understand that even though Texas is a “time of driving” State, many jurors are reluctant to convict a person who had a result under the legal limit. Additionally, even though an expert may testify that a person could have been over the limit at the time of driving, it is highly likely that they will also admit that it is just as likely that the person was under the legal limit. Because the burden is on the prosecutor to prove every element of a DWI beyond a reasonable doubt, this testimony should lead to a verdict of “not guilty.”
Of course, there are some prosecutors who will be reluctant to dismiss a DWI even though the blood result was under the legal limit. In these cases, the experience of a DWI attorney can make the difference. On occasion, it will be necessary to set the case for trial to obtain a dismissal, or a verdict of “not guilty” if the DWI is not dismissed.
DWI cases can be extremely complex and having a blood result under the legal limit raises several issues that require an experienced DWI attorney. Attorney Jose Ceja is a former prosecutor who has spent hundreds of hours studying the science of blood testing and can help to maximize your chance of an excellent result no matter what your blood result is. If you have been arrested for DWI anywhere in the Greater Houston area, call Ceja Law Firm today for a free consultation.
