If you’ve driven down I-45, I-59, or any major Texas highway, you’ve probably seen the bold warning signs: “Drink. Drive. Go to Jail.”
These signs get your attention, and they’re meant to. It’s so easy to get an UBER or find a safer way to move around other than impaired driving.
But while these signs serve an important public-safety purpose, they don’t actually state the law correctly. They do a great job stating how the law is enforced out on the street, but the actual law is something different.
In Texas, it is not illegal to drink and drive. It is illegal to drive while intoxicated. Those are two very different things.
So what is the actual law? And what actually happens when an officer pulls you over after you’ve had a drink? Here’s what every Texas driver should know.
The Legal Definition of Intoxication in Texas
Texas law uses a very specific definition of intoxication. Under the Texas Penal Code, a person is considered intoxicated if they:
- Do not have the normal use of their mental faculties, or do not have the normal use of their physical faculties because of the introduction of alcohol, drugs, or a combination of both,
OR
- Have a blood alcohol concentration (BAC) of 0.08 or higher.
The truth is that a single drink, especially for someone of average size, will not put most people over 0.08. A single drink will also usually not impair someone to such a high degree that they’ve lost the normal use of their faculties.
Why “Drink. Drive. Go to Jail” Isn’t Technically the Law But Isn’t Far Off Either
Here’s the uncomfortable truth: while it’s not illegal to have a drink and drive, you may still end up in handcuffs and in the back of a police car even if you’re well under 0.08.
Police Have Nearly Unlimited Discretion in DWI Stops
Texas police officers are trained to treat the odor of alcohol as a major red flag. I have often remarked to people when giving advice that if an officer smells alcohol on you, you’re probably going to jail. If an officer smells alcohol coming from your breath or your vehicle, the stop will then usually escalate to include:
- More questioning
- A request to perform Standardized Field Sobriety Tests (SFSTs)
- An officer more interested in getting a potentially dangerous driver off the street than giving you a fair shot.
And here’s where things tilt heavily in the officer’s favor and against your rights as a citizen:
SFSTs Are Graded Subjectively
The three field sobriety tests (horizontal gaze nystagmus, walk-and-turn, and one-leg stand) are:
- Sometimes difficult for sober people,
- Graded harshly and inconsistently,
- Designed to reveal “clues” that are counterintuitive and open to interpretation,
- And often performed on uneven roads, at night, with flashing lights and passing traffic.
An officer who believes you may be impaired can nearly always justify “failing” you.
Refusing SFSTs Can Still Lead to Arrest
Most people don’t realize this: exercising your right to refuse field sobriety tests can itself be used as justification for an arrest. Your refusal may be interpreted as a sign that you are intoxicated even if you’re not.
That’s why so many Texans who had “just one drink” still find themselves riding to the jail instead of driving home. These cases produce low blood or breath test results, but if a person refuses to provide a specimen, there may not be a scientific buffer to vindicate them. Breath and blood tests aren’t perfect either.
The Bottom Line: It is legal to drink and drive in Texas, but in practice, it’s risky.
Because police have broad discretion and field tests are subjective, even a small amount of alcohol can lead to:
- Arrest
- Blood or breath testing
- Vehicle towing
- Potential license suspension
- A criminal charge you now have to fight
If you or a loved one is facing a DWI charge in Montgomery County, Walker County, or the surrounding areas, Alsbrooks Law can help you understand your rights and build a strong defense from day one.
Have questions? Contact us for a free consultation.