Under the Limit DWI

Even if your BAC is below 0.08%, you can still be charged with an under-the-limit DWI in Houston because Texas law also defines intoxication as losing the normal use of mental or physical faculties because of alcohol, drugs, medication, or a combination of substances.

An under-the-limit or low-BAC DWI is not a separate offense in Texas. The charge is generally brought under Texas Penal Code § 49.04, which makes it an offense to operate a motor vehicle in a public place while intoxicated.

While a BAC below 0.08 may create important defense issues, it does not automatically prevent or require dismissal of a DWI charge. But the case can turn more heavily on the officer's observations, body-camera footage, driving behavior, field sobriety tests, statements, the timing of breath or blood testing, and any allegation involving drugs or medication.

Under the Limit DWI Attorney in Houston, Texas

A BAC below 0.08 changes the evidence prosecutors may rely on, but it does not make the case routine or automatically weak.

Instead of relying on a BAC of 0.08 or higher, prosecutors may argue that you lost the normal use of your mental or physical faculties. They may point to alleged bad driving, speech, balance, red eyes, coordination, field sobriety tests, body-camera footage, or statements made during the investigation.

Michael & Associates Criminal Defense Attorneys represents people facing DWI charges throughout Houston and Harris County. Our lawyers can compare the evidence against what the videos, testing records, medical history, toxicology evidence, and timeline actually show.

According to our internal 2025 case data, 63.6% of our DWI jury trials ended in an acquittal, dismissal, or directed verdict. That statistic reflects only the cases included in that internal data set. Every DWI case is different, and past results do not guarantee or predict a similar outcome.

Can You Get a DWI in Houston With a BAC Below 0.08?

Yes. A BAC below 0.08% is not an automatic defense to DWI in Texas.

Texas Penal Code § 49.01 provides two primary ways the State can attempt to prove that a person was intoxicated:

Texas Penal Code § 49.04 then requires the State to prove that the person was intoxicated while operating a motor vehicle in a public place.

What Does "Loss of Normal Faculties" Mean?

Texas law does not require someone to be unconscious or completely unable to speak before a prosecutor can allege loss of normal faculties.

Police reports in low-BAC DWI cases often describe observations such as:

No single observation automatically proves intoxication. Unlike the 0.08% alcohol-concentration threshold, evaluating a possible loss of normal faculties often depends on an officer’s interpretations. Different officers can observe the same behavior and describe or weigh it differently.

An officer’s opinion may be enough to support an arrest, but it does not prove someone was guilty. Prosecutors must still show beyond a reasonable doubt that all the evidence establishes that the driver had lost the normal use of their mental or physical faculties while operating the vehicle.

How Houston Police and Prosecutors Build a Low-BAC DWI Case

In a typical DWI case with a result over 0.08%, the chemical test may be a major part of the State's evidence. In a low-BAC case, the prosecution may try to build its case around multiple smaller pieces of evidence.

Evidence the State may use:

• Driving observations before the stop
• Statements made during the roadside investigation
• Body-camera or dash-camera video
• Field sobriety test results
• The odor of alcohol
• Alleged balance, coordination, speech, or eye-movement issues
• Open containers or alcohol containers in the vehicle
• Admissions about alcohol, drugs, or medication
• Blood-test results for controlled substances or prescription medication
• Drug-recognition-evaluation evidence, when applicable

Field Sobriety Tests: Why They Matter More in a Low-BAC Case

Field sobriety testing can become especially important when there is no BAC of 0.08% or higher. The three standardized field sobriety tests recognized by the National Highway Traffic Safety Administration are:

NHTSA trains officers to administer and score these tests using standardized procedures. Deviations from those procedures can affect the reliability and weight of the results.

That is why body-camera footage can matter. The video may show whether instructions were clear, whether the roadway or parking lot was suitable for testing, how the person actually performed, and whether the written report fairly describes the encounter.

What if Your Breathalyzer Result Was Below 0.08%?

A breath result below 0.08% should be analyzed in context rather than treated as either automatic innocence or automatic proof of impairment.

One important issue is timing.

A breath test at a police station may occur well after the vehicle was being driven. Alcohol absorption and elimination can cause BAC to change over time. Depending on the evidence, the prosecution may argue that a person's BAC was different when driving than when tested.

That argument also creates questions for the defense, such as:

• How long after driving was the test performed?
• When was alcohol allegedly consumed?
• Was the person still absorbing alcohol?

A low test result should therefore be considered together with the timeline rather than viewed in isolation.

Low BAC and Drug or Prescription Medication Allegations

A low alcohol result may lead an officer or prosecutor to focus more heavily on drugs or medication. That can include:

• Marijuana
• Prescription medication
• Over-the-counter medication
• Controlled substances
• Alcohol combined with medication or drugs

Having a valid prescription does not automatically prevent a DWI charge. But the State must still prove the required intoxication rather than merely showing that medication was present or had been taken.

Unlike alcohol's 0.08% BAC definition, Texas DWI law does not establish one universal numerical impairment threshold for drugs. That makes the details important, including when the drug was taken, the dose, medical records, lab results, and what the officer actually observed.

Houston Under-the-Limit DWI: Criminal Case vs. License Case

A DWI arrest can create two separate matters: the criminal case and the Administrative License Revocation (ALR) case.

For most adult drivers, a BAC below 0.08 does not trigger an ALR suspension based only on a failed alcohol test. However, a refusal, commercial-driver issue, underage alcohol allegation, or other circumstance may create a separate license problem.

What Is the ALR Hearing Deadline?

The deadline depends on how notice was issued.

• If an officer serves an ALR suspension or disqualification notice, the person generally has 15 days from service of the notice to request a hearing.
• When a driver consents to a blood draw, and DPS later mails a suspension notice after receiving an over-the-limit result, the hearing request generally must be made within 20 days from the date the notice is mailed.

Note: A late request may be denied, so review every DPS notice or document right away.

Possible Penalties for an Under the Limit DWI in Houston

An under-the-limit DWI generally carries the same possible criminal punishment range as any other DWI charge under Texas law.

The following are the basic statutory ranges of punishment. Additional state traffic fines, court costs, license consequences, and probation conditions may apply.
 

Real World Under the Limit DWI Case Outcome

Charge: DWI - Third Offense

Location: Harris County, 262nd DC

Allegations: Stopped for suspected impairment, the client was arrested for a third DWI. The blood test showed approximately 0.01% BAC, so the State focused instead on video evidence and toxicology detecting benzodiazepines, despite the client having prescriptions. Our defense team obtained the videos and medical records and challenged the claim that the evidence actually showed a loss of normal faculties. The defense also documented months of clean alcohol monitoring and submitted supporting information from counselors and a psychiatrist.

Result: Probation

Note: Past results do not guarantee or predict a similar outcome in any future case.

Helpful DWI Resources

1. Texas DPS Administrative License Revocation Program: Information about ALR suspensions, hearings, license reinstatement, and occupational driver licenses.
2. Texas DPS Driver License Eligibility System: A tool for checking the status of a Texas driver license and identifying reinstatement requirements.
3. Harris County Criminal Courts: Court information, criminal-court locations, and local court resources for Harris County cases.
4. Harris County District Clerk Criminal Records: Access to certain felony criminal case records and court documents in Harris County.

Houston DWI Lawyer for Under the Limit DWI

A breath or blood result under 0.08 should not be ignored. It can directly affect how prosecutors try to prove intoxication and may expose weaknesses when compared with the officer's report, body-camera footage, field sobriety tests, driving evidence, toxicology findings, and testing timeline.

The Houston DWI defense team at Michael & Associates is led by Charles A. Pelowski, who is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is pursuing a master’s degree in forensic toxicology at the University of Florida and has completed hands-on gas chromatography training at Axion Labs and ISO/IEC 17025 internal-auditor training for forensic laboratories through ANAB. He is also scheduled to complete the coursework required for the American Chemical Society’s ACS-CHAL Forensic Lawyer-Scientist designation in October 2026. This training helps our team evaluate body-camera footage, field sobriety testing, breath and blood evidence, laboratory records, medication issues, medical explanations, and testing timelines.

Do not assume a low-BAC DWI will automatically be dismissed, but do not assume the State can prove its case either. Early evidence review can help protect your license, record, and future.

Contact us for a free case review.