Daily Archives: July 6, 2016

DWI: Texas is an at the Time of Driving State

Texas being an “At the Time of Driving State” Can Make DWI Cases a Bit More Complex

Yesterday I got an interesting DWI case dismissed.  When I first met with my client he had no clue why he was being charged with DWI.  He asked me what the legal limit in Texas was and I told him .08.  Well my client blew a .07 into the Intoxilyzer 5000, which is the breath test machine that was used in his case, hence his confusion.

So why would someone who blew UNDER the legal limit be charged with DWI?

Texas: An”At the Time of Driving State”

The problem is that Texas is an “at the time of driving state”.  This means that what is really important is what was the blood alcohol level of an individual at the actual time he was driving.  Sometimes it takes 30 minutes, but sometimes it takes hours for an individual to take a blood or a breath test after being arrested.  So how can they prove what the BAC was at the time of driving?  That’s the tough question, and bottom line is, they can’t.  The State’s experts will always say, “all I can say is that the BAC was either higher, the same, or lower” at the time of driving.

Now sometimes, they will try to formulate a guess to what the BAC was, and it truly is a GUESS.  They use what is called retrograde extrapolation.  In basic terms, retrograde extrapolation is a mathematical process based on “science” that is used to try to figure out what the BAC was of a person at a certain time.

The problem that arises is that it is RARE that we know everything we need to know about a person to figure this out.  They need things such as: time of first drink, time of last drink, when was the last time they ate, how much did they eat, what did they eat, etc.  And those are just the basic items that need to be known.  They also need to know everything about that person’s body, health, how they process food, alcohol, etc.  It’s virtually impossible to have all of this data.

So as a lawyer I see DWI cases like this from time to time, and they are always a fight.  Because there is absolutely zero percent chance that I would ever advice a client to take any sort of deal on a case where their blood or breath came back below the legal limit.  In this particular DWI case there were no extrapolation facts.  My client spoke Spanish, the officer spoke English, and the officer didn’t bother getting a Spanish speaking officer to interview him.  On top of that he looked great doing the sobriety tests, so they could not prove that he lost the normal use of his mental or physical faculties (which are the other 2 ways besides <.08 to prove intoxication). It took much longer than expected, but my client walked out of the courtroom a happy man.