An affiliate of Martine Law, serving Texas, Minnesota, North Carolina and New Jersey. In Texas, legal services are provided by Texas Criminal Defense Attorneys PLLC, 325 N St. Paul Street, Suite 3129, Dallas, TX 75201.
Can You Get a DWI Below 0.08 in Texas?
What a lower alcohol result does, and does not, establish.
In short: Yes. Texas can prosecute a DWI below 0.08 if the State proves that alcohol or another substance caused the driver to lose normal mental or physical faculties. The 0.08 threshold is a separate way to establish intoxication. A lower result matters, but it does not automatically require dismissal.
Explore this page 10 sections
Why is 0.08 not the only test?
Texas Penal Code 49.01(2) gives two alternative definitions of intoxication. One concerns the effect of a substance on a person's faculties; the other concerns alcohol concentration. Section 49.04 also requires intoxication while operating a motor vehicle in a public place. An alcohol result addresses part of that case, not every element.
| Question | What it means |
|---|---|
| Was the alcohol concentration at least 0.08? | This is the numerical intoxication standard. The timing and reliability of the specimen still matter. |
| Was normal mental or physical ability lost because of a substance? | This is a different standard. The State may rely on evidence beyond an alcohol result. |
| Was the person operating in a public place? | The State still has to prove the other elements of DWI. A test result alone does not answer them. |
Does a 0.06 result prove that I was safe to drive?
No single result answers that question. A result below 0.08 may be useful defense evidence, but it is not a legal safe-driving certificate. It also does not by itself prove impairment. The useful question is what the evidence establishes about the person's condition while operating the vehicle.
Distinguish the time of the stop from the time a specimen was collected and analyzed. Ask your attorney how the prosecution connects its evidence to the alleged driving. Do not assume a later measurement and the earlier driving event are interchangeable.
What evidence should the defense examine?
- The complete video: compare the driving, conversation and instructions with the written report.
- The test records: identify the actual specimen, collection time, reported result and supporting laboratory or instrument records.
- Alternative explanations: tell counsel about relevant injuries, health conditions, fatigue or communication difficulties. Those facts require evidence; they are not automatic defenses.
- Witnesses and timing: preserve names, receipts and messages that help establish an accurate chronology.
Is a below-0.08 case a DUI instead?
Not automatically. Texas DUI under Alcoholic Beverage Code 106.041 is a separate offense involving a driver under 21 with detectable alcohol. An adult's lower test result does not simply change a DWI into that offense. Read our DUI versus DWI explanation for the age distinction.
What should I bring to a consultation?
Bring the charge paperwork, bond order, any test result you actually received and a private timeline for counsel. Separate facts you remember from estimates or things another person told you. Keep original files; do not edit a recording or ask a witness to coordinate a story.
Our Dallas office handles DWI matters in the 12 North Texas counties listed on our service-area page. The location of the case matters for the court process; it does not change the statewide definition of intoxication.
How do I get started?
The first consultation is free. It is with a Director of Client Engagement, not an attorney. Clients who hire us work with an attorney. Call (214) 239-2013. Phones are answered 24/7, with AI covering when no staff is free.
Last updated October 2026
Common questions
Does a BAC below 0.08 automatically dismiss a Texas DWI?
No. The State may try to prove loss of normal mental or physical faculties caused by a substance. A lower result must be evaluated with the other evidence.
Is 0.08 the only definition of intoxication in Texas?
No. Penal Code 49.01 includes both an alcohol-concentration standard and a loss-of-normal-faculties standard.
Should I keep a test result even if it is below the limit?
Yes. Preserve the original result, the paperwork that came with it and the collection timeline for your attorney.
Do not wait for your court date to get help. Call (214) 239-2013.
Phones are answered 24/7, with AI covering when no staff is free.
This page provides general information about Texas law. It is not legal advice, and reading it does not create an attorney-client relationship.