.08 is a Bad Idea (7/2/99)
The Texas Legislature has now reduced the legal limit for blood-alcohol concentration ("BAC") in the area of DWI  to .08 from its previous level of .10.  It is a bad idea.

Before you read any further, you must understand this concept - Under the old standard of .10, there were two ways that a jury could convict someone of DWI: (1) they could believe the defendant had a blood alcohol concentration of .10 or greater at the time the defendant was driving, or (2) they could believe the defendant did not have the "normal use of his mental or physical faculties" at the time he operated the vehicle.  There is an important aspect of the law here: a person could have a blood alcohol concentration of .09 or .08 and still be convicted if the jury believed he was not "normal", from a physical or mental   standpoint, due to the introduction of alcohol into his body. How is this possible? Every credible expert will testify that a normal person loses his normal functioning once he reaches .08. 

Those DWI cases being tried today are not those involving defendants who drove all over the highway and were falling down drunk. No, it is the marginal cases that are taking the time of the courts. I suspect that 90% of the cases involve BAC of .10 to .13 (or the defendant refused the breath test altogether).

Those cases are already tough for prosecutors. Why is a .11 BAC case "tough", you ask. Isn't that conclusive evidence of guilt? In a word, "no".

If a defendant registers a .11 on the breath test given 40 minutes after his arrest, that is not sufficient proof for the prosecutor. For the jury to rely upon BAC to support a conviction for DWI, the jury needs to believe at the time of driving the defendant's blood alcohol concentration was .10 or greater. This proof can get convoluted depending on factors that are oftentimes only known to to the defendant: when the last drink of alcohol took place and when and how much did the defendant have to eat that night. All of these factors play a role into calculating a defendant's BAC at the time of driving. The question in court is "was he going up or going down?".

Before the change in the law, the prosecutor had some leeway: As noted earlier, a jury could have a reasonable doubt about the BAC being greater than .10, but the jury could still convict if they believed the defendant was not "normal" from a physical and mental standpoint. Thus, the jury could say, "we believe the BAC was actually .09 but he's still guilty because he didn't have the normal use of his faculties - after all, the expert says a person crosses this normalcy line at .08 so it all makes sense to us."

With the new law, the rules have been changed to benefit the defendant.  If a person is tried for DWI and has a breath test result of .08 or .09, the defense will now attempt to create a reasonable doubt that the defendant was actually .07 or .06 at the time of driving. If a jury develops a reasonable doubt on that issue, by necessity they will also develop the same doubt as to whether the defendant was not "normal" as to the use of his faculties.  The defense argument is simple: "The State has failed to prove what the BAC was at the time of driving. They have tried to establish that he was .08 at the time of the test, but the evidence indicates it is just as likely he was .07 or .06 or even lower when he was stopped. Furthermore, every expert testified that a person at .07 or lower can be 'normal' when it comes to his mental and physical faculties".

In the past (when the BAC limit was .10), the State could win a DWI case even if there was the possibility the defendant was .09 at the time of the offense. Those days are gone. Under the new standard of .08, if the jury believes he was .07, there will be no conviction.

The end result is this: The input of new DWI cases with a BAC between .08 and .10 will now tie up the misdemeanor courts. DWI defendants will begin to win more of those cases than they had in the past, and this success will cause a chain reaction in that even more defendants will want to take their chances with the jury. Thus, the misdemeanor courts begin to develop backlogs even more. When backlogs develop, there are only two ways to reduce them: create more courts or have the prosecutor lower his minimum requirements for plea bargaining.  It is simple supply and demand.

We were better off at .10.

Barry Green is the District Attorney for the 271st Judicial District.

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