Why “Just Don’t Drink and Drive” Doesn’t Always Work

I regularly hear people say, “just don’t drink and drive.” The implication is that if you don’t drink an drive, you won’t be arrested for driving while intoxicated. Statements like this assume that everybody who gets arrested for DWI is guilty, when people are sometimes arrested when they have not had anything at all to drink.

I have represented several people in the past who were arrested and charged with DWI. Once the blood results came back, the results showed that there was no alcohol or drugs in their system.

So, the question is, why would a person be arrested for DWI if they had not used alcohol or drugs? According to the Texas Penal Code, a person is intoxicated if they have a blood alcohol level of .08 or higher, or if they have lost the normal use of their mental or physical faculties due to an intoxicant.  There are basically two reasons that people are arrested when they have not had any drugs or alcohol.

First, an officer has no idea what a person is usually like and may mistake a person’s characteristics as clues that the person is intoxicated. If an officer hears someone talking, that seems to be speaking with a slur, the officer may think that person is slurring because they’ve had too much to drink. If the person doesn’t have great balance or doesn’t follow instructions well, the officer may think that’s because the person is intoxicated.

I recently had a client, who was arrested for DWI. He was driving home from work at around 2:00 in the morning. When the officer pulled him over, my client pulled over in a weird place, and when the officer asked him to pull up to the next exit, it took my client awhile to follow the instructions. When the officer made contact, my client sounded drunk. Additionally, he did not do well on the field sobriety tests. If I were a prosecutor and I had only the video to go on, I would have been willing to take it to trial. However, the case was dismissed when the blood results came back, because he had no drugs or alcohol in his system. We knew this was how they would come back, because he has never had alcohol or drugs for religious reasons. He did have a very thick accent and every time I met with him, his speech sounded like he was drunk. That was just how he spoke. He was also an older man, and field sobriety tests are less reliable on older people who aren’t as coordinated as they used to be.

Second, a person may have lost the normal use of their physical or mental faculties, for a reason other than intoxication. If a person is tired or is having medical issues, they may have lost the normal use of their physical or mental faculties, but not due to an intoxicant. I had another client recently who was also arrested for DWI and also had no alcohol or drugs in his blood. He was also on his way home from work at around 2:00 in the morning. He had just finished working a double shift at work and was very tired. The officer though he may be intoxicated and had my client perform the field sobriety tests. My client did not do well and was arrested. He was a guy in his 20s, who was in good shape, and had no medical problems. He may have lost the normal use of his mental or physical faculties, but it was because of how exhausted he was, not because he had used drugs or alcohol.

Officers aren’t perfect and there are some officers who are worse about making DWI arrests and the results showing there was no alcohol or drugs in the person’s system. Of course, not drinking and driving is going to reduce the chance that you are arrested for DWI, but that doesn’t necessarily mean you’ll never have to worry about it.

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