House Bill 1199, creating enhanced penalties for even first time DWI offenders, went to Governor Perry's desk on May 30 for signature. The law takes effect 9/1/11 and will undoubtedly pass. A first offense DWI, regardless of the breath, blood, or urine result, is a Class B misdemeanor. Well, not anymore. Now, a first time offender will find themselves charged with a Class A misdemeanor offense if it's shown at trial that the person's breath, blood, or urine at the time of driving is .15 or higher. This means enhanced penalties.
It is problematic though based on the theory of retrograde extrapolation. A person could still be in the absorption phase at the time of the test. The time of the test is always after the stop (i.e., time of driving). Therefore, a person could actually be less than .15 at the time of driving but at the time of the test an hour or more after the driving a person could very well be at or over .15. Remember the offense is driving while intoxicated and the only number that matters is the number at the time of driving.
This is very problematic and yet another good reason to refuse the breath or blood test if you have any doubt that you are .08 or more.
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