Do you get to go home if you blow under the legal limit? Short answer….NOPE. As a DWI Attorney in Houston I have talked about this before, because it happens often. People blow under the legal limit, and they don’t get to go home. Why? Because they arrest you BEFORE you take the breath test.
Whenever a cop is asking for your breath, they must read you a form. That form starts with:
“You are under arrest for….”
That tells you right there that you are under arrest. But unfortunately, many people believe that if they blow and blow under the legal limit that they will get to go home. From time to time, officers even tell people that they can go home if they blow under the legal limit. But that just is not true.
On this case, my client was pulled over, did good on the sobriety tests, and was still arrested because the officer smelled alcohol on his breath. They took him back to the station, he blew into their machine, and he passed that too. Yet he was still arrested.
The problem is that there are 3 ways to prove intoxication:
- Your breath or blood is over .15
- You lost the normal use of your mental faculties
- You lost the normal use of your physical faculties
So technically a DA doesn’t NEED a breath test over .08, but that is just ridiculous. Juries for the most part hate seeing cases where someone’s test is under the legal limit. From my experience, they don’t care about the timing of the test, etc. They just look at the number in this type of situation.
So unfortunately for my client we had to fight. It took months waiting for the evidence, and we rejected every plea offer they gave him. When it was time to set it for trial, the DAs ultimately did the right thing and dismissed.
Being charged with a DWI is not fun, so remember to be careful. It is legal to drink and then drive, as long as you are under the legal limit. The problem is that its impossible to know where you are on that scale at all times.
But if you every find yourself faces a DWI charge, call me. As a DWI Attorney in Houston I have the experience to walk you through the system, and make sure that you come out with the best result possible.
Eric Benavides is a Houston Criminal Defense Attorney. He is a co-founder of Benavides & Serrano, PLLC. He is a graduate of the prestigious Texas Criminal Defense Lawyers Trial College, and is a proven trial lawyer. He has been recognized as one of the best criminal lawyers in Houston by the Houstonia magazine, and has earned a perfect 10.0 rating on AVVO.