Can You Get A DWI In Texas If Your BAC Is Below 0.08%?

Can You Get A DWI In Texas If Your BAC Is Below 0.08%?

When law enforcement pulls you over on suspicion of impaired driving, many people assume that they are safe if their blood alcohol concentration (BAC) is below the legal limit of 0.08%. However, under Texas law, you can still face DWI charges even when your BAC registers below 0.08%. In our experience defending clients in Galveston and the greater Houston area, we’ve seen how officers rely on field observations, standardized sobriety tests, and statutory definitions of intoxication to pursue DWI cases. It is vital to understand the legal standards that apply, the types of evidence officers use, and the potential defenses when your BAC is under the threshold. Armed with that knowledge, you can better protect your rights and build an effective defense if you find yourself facing charges.

The Legal Standard For DWI In Texas

Under Texas Penal Code § 49.04(a), a person commits the offense of driving while intoxicated if they are “intoxicated while operating a motor vehicle in a public place.” The statute sets out two distinct bases for intoxication:

• BAC Per Se – Having a BAC of 0.08% or more within two hours of operating a vehicle.
• Impairment Standard – “Not having the normal use of mental or physical faculties” due to alcohol or drugs, regardless of BAC level.

Texas recognizes that alcohol or drugs or both can impair driving performance before a person reaches the 0.08% threshold. That means officers may arrest a driver who appears impaired, even if a breath or blood test shows a BAC of .07%, .06%, or lower.

Defining Intoxication Beyond BAC

The definition of “intoxication” in Texas extends beyond a numerical test. Texas Penal Code §

49.01(2) states that a person is intoxicated “if the person does not have the normal use of mental or physical faculties” because of the introduction of… alcohol or any other substance into the body. This impairment standard allows law enforcement to rely on:

• Field Sobriety Tests – Standardized tests such as the Horizontal Gaze Nystagmus (HGN), walk-and-turn, and one-leg stand.
• Officer Observations – Slurred speech, bloodshot eyes, the smell of alcohol, unsteady gait, or poor coordination.
• Driver Admissions – Statements about drinking or drug use.

An arresting officer’s training and experience play a critical role in interpreting these signs of impairment. Even if the chemical test shows a BAC below 0.08%, the prosecution may argue that the totality of evidence proves intoxication under the impairment standard.

Administrative License Suspension And Chemical Tests

When you provide a breath or blood specimen, the Texas Transportation Code provides for an administrative license revocation (ALR) process. Under Tex. Transp. Code § 524, if your BAC is .08% or greater, your license is automatically suspended unless you request a hearing within 15 days. However, if your BAC is below .08%, you may avoid that automatic suspension. A refusal to provide a test under Tex. Transp. Code § 724.035 can also trigger an ALR suspension.

Even so, an administrative hearing focuses on whether the officer had reasonable suspicion to stop you and probable cause to arrest you, not solely on the test result. And while a sub-0.08% reading may help at the administrative level, it does not bar a criminal prosecution for impairment-based DWI.

Criminal Penalties For Impairment DWI

Under Texas Penal Code § 49.04(c), the offense is a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine for a first offense. Subsequent offenses increase in severity. If the State proves impairment by chemical test or field evidence, the court may impose:

• Jail Time or Probation – Depending on criminal history and case facts.
• Fines and Court Costs – Up to statutory limits.
• License Suspension – Even for impairment-only cases, courts can suspend driving privileges.
• DWI Education Programs – Mandatory classes, community service, or alcohol counseling.

Although a BAC below 0.08% can mitigate administrative and criminal penalties, the law focuses on whether you were “intoxicated” in either the per se or impairment sense.

Building A Defense When BAC Is Below 0.08%

Challenging an impairment-based DWI requires attacking the reliability of the officer’s observations and field tests. We examine:

• Proper Test Administration – Did the officer follow NHTSA protocols for HGN, walk-and-turn, and one-leg stand?
• Environmental Factors – Uneven pavement, lighting, or wind can affect test performance.
• Medical Conditions – Inner-ear disorders, injuries, or medications can mimic impairment.
• Video Evidence – Bodycam or dashcam footage may undercut the officer’s testimony.

We also challenge any chain-of-custody errors and calibration issues with chemical testing equipment when applicable.

Why Early Intervention Matters

Time is critical. Delayed action can hurt the preservation of evidence, witness memory, and your administrative rights. We recommend contacting legal counsel immediately after arrest to:

• Request Your ALR Hearing – Within 15 days to contest license suspension.
• Gather Evidence – Secure medical records, footage, and witness information.
• Plan Your Defense – Assess chemical results, test protocols, and officer training.

Every case is unique. While a BAC below .08% may help at the administrative level, building a strong criminal defense depends on addressing all facets of the arrest, testing, and officer conduct.

BAC Is Below 0.08% Frequently Asked Questions

What Factors Can Lead To A DWI Arrest When My BAC Is Below 0.08%?

Even if your BAC registers below .08%, law enforcement can still arrest you based on observed impairment. We see officers use standardized field sobriety tests, such as the Horizontal Gaze Nystagmus, Walk-And-Turn, and One-Leg Stand, to assess your coordination and balance.

Factors like slurred speech, red or glassy eyes, the odor of alcohol, and poor reaction to instructions may all contribute to their determination of “not having the normal use of mental or physical faculties,” as defined in Texas Penal Code § 49.01(2). Environmental conditions, medical issues, or fatigue can also affect test performance, so we challenge whether the officer’s observations truly indicate intoxication.

Can Prescription Medications Or Medical Conditions Mimic Alcohol Impairment?

Yes. Under Texas law, impairment covers any substance that affects your mental or physical faculties, not just alcohol. Many prescription drugs, such as certain pain relievers, anti-anxiety medications, and even some cold remedies, can slow reaction time or cause dizziness.

Additionally, medical conditions like inner-ear disorders, neurological issues, or low blood sugar may cause similar symptoms. We gather medical records, consult with treating physicians, and retain qualified medical experts to demonstrate that your drug or health condition, rather than alcohol, led to the officer’s observations.

How Do We Challenge Field Sobriety Test Results?

Field sobriety tests must follow strict procedures outlined by the National Highway Traffic Safety Administration (NHTSA). We analyze whether the arresting officer received proper training, applied the correct instructions, and conducted the tests on level, safe surfaces with adequate lighting. Any deviation, such as improper instructions the officer gave you, medical impairments, or poor road conditions, can render the test invalid. We also compare video footage to the officer’s report and look for inconsistencies between the stated protocol and the actual administration of the tests.

What Role Does Video Evidence Play In An Under-0.08% Case?

Video recordings from patrol car dashcams and body-worn cameras can be invaluable. They offer an objective view of the traffic stop, your initial interaction, the field tests, and your overall demeanor. When bodycam footage contradicts the officer’s written narrative—showing stable balance, clear speech, or compliant behavior—we use that footage to undermine the prosecution’s claim of impairment. If no video exists, we question the reliability of the officer’s memory and request all available recordings under Texas Code of Criminal Procedure Art. 39.14.

Can We Suppress Chemical Test Results If My BAC Is Below The Legal Limit?

Yes. We examine whether the breathalyzer or blood test met all regulatory standards under Texas Transportation Code § 724.011. That includes checking the calibration logs, maintenance records, and operator certifications for breath-testing instruments. For blood tests, we scrutinize chain-of-custody procedures at the collection site, the qualifications of the phlebotomist, and the handling of the specimen. Any break in protocol, like expired testing solutions, untrained technicians, or contaminated vials, can lead to suppression of the chemical result entirely.

How Does Implied Consent Affect My Case When My BAC Is Under .08%?

Under Texas Transportation Code § 724.011, you are deemed to have given consent to chemical testing when you operate a vehicle. However, a low BAC reading does not automatically justify an arrest, nor does it conclusively prove impairment. We work to separate the administrative implied consent process, which triggers license suspension issues, from the criminal DWI prosecution. If you refused the test, you face an administrative suspension, but we still challenge the criminal charge on impairment grounds.

What Are The Potential Penalties For A Sub-0.08% DWI Conviction?

A first-time impairment-based DWI is a Class B misdemeanor under Texas Penal Code § 49.04(c), punishable by up to 180 days in jail, a maximum $2,000 fine, and a license suspension of up to 180 days. Subsequent offenses or enhancements, such as having a child passenger, can lead to higher fines, longer suspensions, and mandatory ignition interlock installations. Even a single conviction can impact your driving record, insurance premiums, employment prospects, and future travel.

Can An Administrative License Revocation Hearing Help My Case?

Absolutely. You have only 15 days from the date of arrest to request an ALR hearing under Texas Transportation Code § 724.035. At this hearing, we challenge whether the officer had legal grounds to stop, arrest, and test you. A successful challenge may prevent or shorten your license suspension. Although the ALR hearing is separate from the criminal case, evidence and witness testimony at the hearing can also support your defense strategy in court.

How Do We Approach Plea Negotiations When The BAC Is Below .08%?

When your BAC is under .08%, prosecutors may still offer plea deals to Class C misdemeanors, like reckless driving, to avoid trial. We evaluate whether a plea is in your best interest by comparing the consequences, such as probation, fees, and record impact, to the uncertainty of a jury trial. In many cases, a negotiated plea can protect your driving privileges and minimize jail exposure. However, we always strive first for dismissal or acquittal if we believe the evidence of impairment is weak.

What Should I Do Immediately After A DWI Arrest With A Low BAC?

Contact legal counsel as soon as possible—ideally before your ALR deadline expires. Preserve all evidence by requesting any video, medical records, and test reports. Note witness names and statements, and provide your attorney with any relevant information about medication, health conditions, or external factors that could explain the officer’s observations. We then build a comprehensive defense that addresses every aspect of your arrest and testing.

Are You Facing DWI Charges With A BAC Below .08%?

If you’re facing DWI charges with a BAC below 0.08%, you need aggressive representation that understands every angle of Texas DWI law. At Mark Diaz & Associates, we defend clients in Galveston, Houston, and throughout southeast Texas, fighting to protect your rights and future.

Contact our Galveston DWI defense lawyers at Mark Diaz & Associates by calling 409-515-6170 to receive your free consultation. Let us put our experience to work for you.