People often wonder what exactly will lead them to become a .08 or higher.  The following is how the State of Texas will attempt to explain your Blood or Breath Alcohol Concentration.  While there is controversy surrounding their methods, it is helpful to know what your opponent is going to use against you.  Obviously every individual is different and BAC can be influenced by gender, height, weight, body fat, body muscle, and a variety of other factors.  The factors below are merely generalizations used by the government to aid in your conviction for DWI.  First we must establish how much alcohol is in your average drink.  The average drink is measured as either Twelve ounces of beer, four ounces of wine, or one shot of hard liquor.  Each drink of these measurements will raise your BAC by .02.  Therefore, it takes about four drinks to reach the level of .08.  It is also important to know that the State will contend that the average human being eliminates alcohol at a rate of .01 per hour.  Furthermore, you BAC peaks 30 minutes after your last drink on an empty stomach and 90 minutes after your last drink on a full stomach.  


Knowing what the State is using against you can be helpful in preparing a successful defense.  For instance, we know the State's scientist will attempt to say that the average beer is .02.  Let's say that you admitted to the officer that you had four beers.  Under their logic, you would be a .08 and therefore guilty of DWI.  However, suppose you were enjoying beer from a keg and drinking out of plastic glasses.  Most plastic glasses are not twelve ounces.  They range from four ounces to eight ounces.  Since this is less than the average drink used by the State's scientist you would be under .08 when your BAC peaked and therefore not guilty of DWI.  

Another scenario where this information can be helpful is where you are pulled over before the absorption time has lapsed. For instance, you enjoy a large meal at a restaurant and ingest five alcoholic beverages, the last of which is at 10pm.  Let's assume that they are the average size that the State Scientist uses.  Now let's suppose you get pulled over at 10:30 pm on your way home.  You are taken into custody and submit a breath test at 11pm.  Remember, that in order to be guilty of DWI, the State must prove that you were above a .08 while driving.  A breath test at 11 pm is not relevant unless the State's scientist can successfully extrapolate that number back to the time of driving.  This retrograde extrapolation is only possible if you were in the elimination stage of alcohol and cannot be done if you were absorbing.  Therefore, while normally you would be at a .10 after five drinks, the State cannot successfully extrapolate back to the time of driving since you were in the absorption phase (remember 90 minutes to peak on a full stomach).  Since less than 90 minutes has passed between the time of last drink and the time of stop, the State cannot successfully extrapolate you and the case should be dismissed.

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