Driving While Intoxicated: Two Different Standards

Everyone knows that driving while drunk, or intoxicated, is against the law. But what that means is not always clear to everyone it affects. If you listen, read, or watch the news, no doubt you have been exposed to at least a dozen stories that report a DWI. In those stories reporters often describe the blood alcohol content a person had when arrested, but that does not tell the whole story.

Under Texas law there are two different standards under which a person can be convicted of DWI. The first, and easiest to understand, involves blood alcohol content. Under Texas Criminal Code 49.01(2)(B), intoxicated means having a blood alcohol concentration of 0.08 or more. A blood alcohol level is usually discovered by taking a blood sample from the suspect and analyzing it at a lab for its blood alcohol content. But what happens when a sample is not taken, and no blood alcohol content is presented as evidence?

There is a way for law enforcement to prove intoxication without taking a blood or breath sample. Under Texas Criminal Code 49.01(2)(A), intoxication as applied to DWI laws is also defined as not having the normal use of mental or physical faculties because of alcohol or other controlled evidence. But this is a broad statement, and must be proven beyond a reasonable doubt in order to produce a conviction of DWI.

Evidence is Key

In any case, whether based on a blood sample or another way, the evidence collected by the police during the DWI investigation is key. With a blood or alcohol test the matter is rather simple and straightforward. The evidence is contained in the blood or other sample. But that does not mean it is automatically going to be part of the case. There are good reasons and defenses that can be raised in a DWI defense as to why that kind of evidence should not be introduced or used at trial.

The kind of evidence needed to prove intoxication without a blood or breath sample is more complex and difficult to obtain and prove in court. In most cases, the primary evidence used by prosecutors to prove DWI (when not relying on blood or breath samples) is the testimony of a police officer. Officer testimony usually consists of the same story lines:

  • Observing a car driving erratically or swerving;
  • Smelling the scent of alcohol when pulling someone over; and
  • Administering field sobriety tests.

This second kind of evidence is more difficult to prove in court because it is subjective, relative to the officer’s opinion about what different things mean. For example, the smell of alcohol could mean one of a hundred different things. It could be a passenger drinking, a spilled drink from a party, or any number of other explanations. The same goes for every other kind of evidence used to prove intoxication without a blood or breath test.

The point of all this is simple, if you are accused of DWI you need the right defense team to put on the best defense available given the evidence of the case. When you contact us at the Wilder DWI Defense Firm, we will help you understand what your legal options are, and provide you with the best DWI defense available.

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