It’s important to point out that drinking and driving is NOT illegal in Texas. Driving While Intoxicated is illegal. If you want to look it up, it’s listed in Texas Penal Code Section 49.04. So what does it mean to be “intoxicated”. The short answer is it’s a question of fact for the jury. The key question in many jury trials is whether or not the prosecutors can remove all reasonable doubts about whether or not a driver was intoxicated at the time they were driving. Yet there’s often a lot of facts and opinions for the jury to consider when they decide the answer to that question.
Texas Penal Code Section 49.01 gives a legal definition. It is “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Yet what is “normal” for one person may look like “intoxication” in the eyes of a police officer who doesn’t know that person. Many people have mental and/or physical problems that have nothing to do the introduction of alcohol or other substances into their bodies that explain their behavior. Just because a police officer decided they had probable cause to arrest someone for Driving While Intoxicated doesn’t mean they’re guilty. It’s up to a jury to decide guilt beyond a reasonable doubt.
If the driver has a Blood Alcohol Concentration or “BAC” of 0.08% or higher, they are presumed to be legally intoxicated. Prosecutors can try to prove a BAC of 0.08% or higher by either a breath test or a blood test. Breath test results are less scientific and easier for an experienced DWI lawyer to challenge. Yet there are also ways to challenge blood test results as well. It’s common for blood test results in DWI cases to show the presence of other substances besides alcohol. It’s important to point out that prosecutors can still charge someone with Driving While Intoxicated due to alcohol AND other substances. Juries can also find the driver “not guilty”.
A common “other substance’ found in DWI blood test is THC from marijuana. The reason is because it stores in the fat cells for up to six weeks. Texas has no set nanogram threshold for intoxication from marijuana. This means a prosecutor can charge someone with driving while intoxicated for any detectable amount of marijuana in their blood. Yet a conviction requires proof of actual impairment at the time they’re driving. It’s not good enough to just give the jury a number.