It is common knowledge that the legal blood-alcohol concentration (BAC) limit for drunk driving in Texas is 0.08 percent. BAC varies depending on a person’s weight, metabolism, and the type of alcohol consumed. But just to give you a rough idea, a 160-pound man will likely be at or over 0.08 percent BAC after 3 or 4 drinks.
Under Section 49.04 of the Texas Penal Code, a DWI occurs anytime someone operates a motor vehicle with a BAC of at least 0.08 percent. This is a Class B misdemeanor subject to a possible 6-month jail term upon conviction. However, Section 49.04 also provides that a DWI is Class A misdemeanor–doubling the potential jail time to 1 year–if the evidence shows the defendant’s BAC was at least 0.15 percent, or roughly double the legal limit.
Houston Court Reduces DWI Conviction Due to State’s “Invited Error”
As with any element of a criminal offense, the prosecution must prove “beyond a reasonable doubt” that a defendant’s BAC was 0.15 percent.
It is not sufficient for police officers to speculate on what the defendant’s BAC might have been. And depending on how prosecutors charge a defendant, it may be necessary to show both the BAC at the time of the alleged offense as well as during a subsequent chemical analysis.
Indeed, just recently an appeals court here in Houston reduced a defendant’s drunk driving conviction from a Class A misdemeanor to Class B because the state charged–but could not prove–the defendant had a 0.15 percent BAC at the time he was actually driving.
In this case, police received a report the defendant had been driving drunk from a tow-truck driver. About two hours later, the defendant failed a breath test, which indicated a BAC of more than .220 percent.
In the subsequent criminal DWI case, prosecutors alleged the defendant had a BAC of at least 0.15 percent “at the time of the analysis and at or near the time of the commission of the offense.” But at trial, the state’s expert witness conceded there was no way to know what the defendant’s BAC was “when he was driving” and that it would be “speculative” to state otherwise. The expert said it was not possible, given the known facts of this case, to extrapolate the defendant’s BAC “backward in time.”
Although a jury nonetheless convicted the defendant of the Class A misdemeanor, the First District Court of Appeals said that was a mistake. The court noted that Section 49.04 only requires proof of a 0.15 percent BAC at the time of analysis, not when the defendant was actually driving.
But the prosecution in this case “invited error” by increasing its own burden of proof and arguing the defendant exceeded 0.15 percent at or near the time of the offense. Having made its bed, the appeals court said, the prosecution must now lie in it.
Were You Charged With Drunk Driving?
Prosecutors make mistakes like anyone else. But when a mistake potentially affects your freedom, you need to have a qualified Galveston DWI attorney on your side who won’t let the prosecution get away with it. Contact the Law Offices of Tad Nelson & Associates today if you have been charged with drunk driving or other felony crimes and require immediate legal assistance.
Our law firm is led by Tad A. Nelson, a Board Certified® Texas criminal-law attorney and an ACS/CHAL Lawyer-Scientist. If you’re serious about fighting the case and keeping the charge off of your record, few law firms in southeast Texas are better suited for the case than us.