Sorry about the delay.
Texas's DUI statute is written so the offense requires the person's breath concentration to be above .08 at the time of driving. A person who has eaten food can continue to absorb alcohol and have their BAC continue to rise for an hour or longer after they stop consuming alcohol.
So a person who has a BAC test result of .088 an hour after driving could have been below .08 when they were driving.
Also the margin of error for the reference sample is +/- .010 g/210 L. The testing protocol requires that the subject have two tests that are within .020 g/210 of each other. Thus the best accuracy the prosecutor can argue that a test result of .088 shows is that driver was between .068 and .108 g/210L. Obviously the .068 is well below the legal limit.
Present the absorption argument along with the margin of error argument and you could have a driver whose BAC was closer .05 at the time of driving.
The good FSTs also support a claim of a Low BAC. Obtain the Intoxilizer 5000 manual. It will have the information regarding the margin of error. The FST training materials will help you use the good performance on the FSTs to argue a low BAC.
A smart prosecutor will offer to reduce a charge on those facts.
I hope that I have answered your question. Please let me know if you have more questions or need more information.
_________________________________________________________________Please rate my answers with a positive rating (three or more stars) as this is the only way I receive credit and compensation for my work.
If you have additional questions or need more information, please ask.My goal is to provide with best assistance that I can. Please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. Also keep in mind that the law may not always be settled or may not support the position you want. My role is not to tell you what you want to hear. but to provide you accurate information as to what the law provides. Please do not rate me poorly just because the information I have provided does not support the outcome you desire.
You can always request me through my profile at http://www.justanswer.com/law/expert-legaleagle1
also begin your question with “For LegalEagle1”
Use of this service does not create any attorney client relationship. Information provided is intended to explain general legal principles and assist you in finding an attorney in your area.
Please click "Great" or better to rate service.