An under-the-limit DWI in Austin usually refers to a case where a breath or blood test shows a BAC below 0.08%. Texas does not treat this as a separate charge, but you can still be arrested or prosecuted for DWI if the State claims alcohol, drugs, or a mix of substances affected your normal mental or physical abilities.
Under Texas Penal Code § 49.04, a person can be charged with DWI if they operate a motor vehicle in a public place while intoxicated, and § 49.01 defines intoxication as either having a blood alcohol concentration (BAC) of 0.08% or higher or not having normal use of mental or physical abilities due to alcohol or drugs. Because of this, a charge is still possible even if the test result is below 0.08.
This is where many people get confused. Some people assume that a lower BAC means the case should be dropped, but that's not how Texas law works. A result under 0.08% may be helpful to your defense, but it doesn't automatically end the case or prevent charges from being filed.
Austin Lawyer for Under the Limit DWI Charges
Austin under-the-limit DWI cases often turn on body camera footage, field sobriety testing, and officer interpretation rather than just BAC numbers alone. Our DWI lawyers can review the stop, the officer's observations, the test results, and body camera footage to identify issues in the case.
Our team also brings trial-tested experience to DWI defense, with a 50% outright win rate and 65% favorable outcomes in 2025 jury trials, according to internal case records. Outright wins include not guilty verdicts, dismissals after jeopardy attaches, and directed verdicts. Note that past results don't guarantee future outcomes.
Michael & Associates helps people facing DWI charges in Austin, Travis County, and nearby areas, including Bee Cave, Lago Vista, West Lake Hills, and Pflugerville.
Arrested for DWI but blew under 0.08%? Call (512) 729-8647 now before you make a mistake. These cases are often misunderstood, but they can still lead to conviction if not handled correctly. Our DWI lawyers can help you understand the charge, review your options, and help you decide what to do next.
What Counts as Under the Limit DWI in Austin?
"Under-the-limit DWI" is not an official criminal charge in Texas. It is a common way to describe a DWI case (Texas Penal Code § 49.04) where the driver's BAC is below 0.08%, but police still claim the person was intoxicated.
Even without a 0.08% BAC test result, the Travis County prosecutors may argue that the driver was impaired or intoxicated (Texas Penal Code § 49.01). The focus is on whether the driver had normal use of their mental or physical abilities while driving. This often happens when an officer claims the driver had one or more of the following:
- Slurred speech
- Poor balance
- Red or watery eyes
- Unsafe driving
- Difficulty following instructions
- Poor performance on field sobriety tests
In Austin, most of these cases are handled as standard DWI charges rather than as a lesser or separate offense.
Can You Still Be Charged With DWI if You Blow Under 0.08%?
Yes, you can still be charged with DWI in Austin even if your BAC is below 0.08%. While Texas law sets 0.08% BAC as the threshold for per se intoxication, prosecutors can still attempt to prove intoxication even when a driver's BAC is below 0.08%.
This doesn't mean every low-BAC arrest is valid. But the defense has to look closely at whether the evidence actually proves intoxication at the time of driving. In many under-the-limit cases, the issue is how the police and prosecutors read the evidence, not just what the test result shows.
Data from the National Highway Traffic Safety Administration (NHTSA) shows that in 2024, 2,028 people were killed in crashes involving drivers with BAC levels between 0.01 and 0.07. This helps explain why a BAC below .08 does not automatically prevent a DWI charge.
Why Travis County Matters in a Low-BAC DWI Case
Travis County prosecutors and courts handle many DWI cases, which can work for or against you. The District Attorney’s office may still pursue charges if it believes it can prove intoxication by showing a 'loss of normal use.' However, if the evidence is weak, such as when your BAC is below the legal limit and video footage supports your case, you have a real chance to fight back.
A skilled DWI attorney in Travis County will know how to:
- Challenge the field sobriety tests, including issues with lighting, road conditions, or how the officer conducted them.
- Examine the time gap between when you were driving and when your blood was drawn.
- Use retrograde extrapolation arguments to support your defense.
- Seek a reduction or dismissal before trial.
How Austin Police Build a DWI Case for Below 0.08 BAC
In under-the-limit cases, officers don't rely solely on the test result. They are trained to look at the full situation, and common evidence may include:
- Driving behavior before the stop
- The officer's reason for pulling the driver over
- Statements made during the stop
- Smell of alcohol or signs of possible drug use
- Red or watery eyes
- Slurred speech
- Balance or coordination issues
- Field sobriety test performance
- Breath or blood test timing
- Body camera and dash camera footage
Problems With Field Sobriety, Breath, and Blood Tests
Low-BAC DWI cases often raise serious questions about the evidence. Field sobriety tests, breath tests, and blood tests can all be challenged depending on how they were given, handled, or interpreted.
For breath and blood tests, the defense may challenge whether:
- The machine was working correctly
- The officer followed the right steps
- The sample was handled properly
- The result actually matches the rest of the evidence
Field sobriety tests are not perfect either. A person can perform poorly for reasons that have little to do with intoxication. Road conditions, poor lighting, nerves, medical issues, unclear instructions, or uneven pavement can affect a person's performance.
The three standardized field sobriety tests are usually:
|
Test |
What Police Look For |
Common Defense Issues |
|
Horizontal Gaze Nystagmus |
Eye movement clues |
Medical issues, poor administration, flashing lights, improper stimulus positioning |
|
Walk-and-Turn |
Balance, divided attention, following instructions |
Uneven ground, footwear, nerves, fatigue, unclear instructions |
|
One-Leg Stand |
Balance and coordination |
Age, injury, weight, medical conditions, and poor surface |
In NHTSA's BAC Effects chart, you can see that even a low BAC of 0.02% may affect visual functions and divided attention. And a 0.05% BAC may impair coordination and response in emergency driving situations.
What to Do After an Under the Limit DWI Arrest in Austin?
Stay calm. Don't argue your case on the roadside or try to explain every detail after a DWI arrest. Remember, what you say can be used against you.
Instead, take these steps as soon as possible:
- Write down what happened while it's still fresh in your mind. Include where you were, what you drank, the timeline of the events, and everything you remember about the stop.
- Save receipts, messages, or anything else that may help show your condition before driving.
- List possible witnesses who saw you before driving.
- Keep all arrest and DPS paperwork.
- Talk with a DWI lawyer. Don't assume the low BAC ends the case.
The goal is to preserve facts before they disappear. A low BAC can be important, but the defense usually depends on the full picture.
Your license may also be at risk, but the rules depend on what happened. For adult drivers, an Administrative License Revocation (ALR) suspension usually is not triggered when the test result is below .08%, and the driver did not refuse testing.
However, a license issue may apply if you either:
- Refused testing
- Had a test result of .08 or higher
- Are under 21, or
- Received DPS suspension paperwork
An ALR hearing is separate from the criminal DWI case. To challenge a possible license suspension, you generally have 15 days from the date you receive notice to request a hearing.
Possible Defense Strategies for an Under the Limit DWI Case
A DWI defense lawyer may focus on whether the State can prove intoxication beyond a reasonable doubt.
Possible defense issues may include:
- The officer lacked reasonable suspicion for the stop.
- Police lacked probable cause for the arrest.
- Medical issues affected balance, speech, eyes, or coordination.
- Field sobriety tests were not given correctly.
- The video doesn't match the report.
- The timing of the test doesn't prove intoxication while driving.
Note: A BAC under 0.08% is not an automatic dismissal. But it can create a serious proof problem for the State, especially when the other evidence is weak, inconsistent, or poorly documented.
Helpful DWI Resources
- Mothers Against Drunk Driving (MADD): This page explains MADD's online Victim Impact Panel program for eligible participants.
- TDLR Drug and Alcohol Education Programs: Use this page to find state-approved DWI education and intervention providers.
- Texas DPS Administrative License Revocation Program: Overview of the ALR process.
- State Office of Administrative Hearings Driver's License Hearing Guide: explains that the ALR case is handled separately from criminal charges.
How Michael & Associates Can Help With an Under-the-Limit DWI in Austin
Don't underestimate an under-the-limit DWI case. These cases can look simple because the BAC is below .08, but they often turn on details in the stop, video, field sobriety testing, chemical testing, and paperwork.
A BAC below 0.08 can be an important piece of evidence in a Texas DWI case, particularly when the State relies heavily on subjective observations. These cases need an attorney who can read toxicology reports, question the officer’s observations, and make the State address the weaknesses in its evidence.
If you have been charged with DWI in Travis County and your BAC was below 0.08%, reach out to us today for a free consultation.
Michael & Associates helps people in Austin understand what the State must prove and where issues may exist in the evidence. This includes reviewing reports and video, checking how tests were handled, addressing the ALR license process, and identifying the next steps based on the facts of the case.
