DWI with a 0.00% Breathalyzer in Texas
Larry Davis, who blew a 0.00% on a breathalyzer, was arrested and charged for DWI last year in Austin. You can read about him and watch the dashcam video here: Davis DWI. His story highlights how willing and zealous police departments are to arrest people for DWI. They err on the side of arresting people first and asking questions later. It is not out of the ordinary for police to arrest a completely sober person.
Totally Sober People Can Fail the Field Sobriety Tests
People are anxious and nervous when they get taken from their vehicles by police and asked to perform the sobriety tests. People are also uncoordinated and people have balancing issues. Standing on one leg can be a problem at any time if you are anxious or have trouble balancing. I will posit that walking in a straight line can is an act of balancing that is difficult for anyone at any time, in any condition.
Weather conditions can also hinder your ability to perform the field sobriety tests. Look at Larry Davis on the dashcam video. It is a cold. It is very windy. It is winter. The police officers are wearing thick coats and warm hats. While Davis is taking the tests he is obviously cold and shivering.
Police Don’t Need You to Take a Breathalyzer to Arrest You
In Texas, there are two ways to get a DWI
- Registering a 0.08 BAC or higher on a breathalyzer or blood test
- Loss of your normal mental or physical faculties
So, you don’t need to have an incriminating breathalyzer test to get a DWI. If the officer subjectively believes you have lost the normal use of your physical or mental faculties, you will be charged with DWI.
When You Get Asked to Take a Breathalyzer in Texas, You’ve Already Been Arrested
You will be asked to take a breathalyzer at the police station. At this point, it is highly unlikely for the officer to admit he/she made a mistake and release you, even if you blow a 0.00. You can beat the charge eventually, but you will not beat the book-in. They will make you go through the entire DWI Process.
“But, Officer, I Have a Prescription for Xanax!”
Don’t ever say that. You can get a DWI for a number of substances other than alcohol. When you blow a 0.00% on the breathalyzer, the officer may suspect that you were impaired because of prescription medications, over-the-counter drugs, or illegal drugs like marijuana. You may be talking to an officer who has been certified as a drug recognition expert. These evaluations have scientific shortcomings. Officers are presented in courtrooms all the time as experts in fields which realistically require years of scientific training. These officer training programs are almost always short and general. A skilled attorney can expose and defeat these tactics.
