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Austinite Arrested for DWI Despite Blowing 0.00 on Breathalyzer

by: Natalie San Luis

Fri Feb 28, 2014 at 02:00 PM CST

After a few tumultuous days last week, the Austin Police Department is now wrapped up in another controversy.

The Austin American-Statesman released an investigative report this week a drunk driving arrest that took place on January 13, 2013.

Austin police officers pulled over Larry Davis after he ran a stop sign, then administered a field sobriety test. After determining that Davis failed the sobriety test, they arrested him and booked him at Travis County Jail.

The problem? Larry Davis was charged with a DWI after blowing a 0.00 on the Breathalyzer, and the legal limit in Texas is a 0.08.

Read more about this case and watch footage of the arrest after the jump.


On January 13, Larry Davis willingly took a breath and blood alcohol test to prove he wasn't intoxicated. Both came back negative.

Nonetheless, Davis was arrested, booked, and threatened with a criminal case. He spent the night in jail and racked up hundreds of dollars in legal fees, which the county paid for because he was declared indigent.

Davis has spent the past year fighting this DWI case, which was eventually dismissed last week. The arrest, which will require another legal battle to expunge, remains on his record.

Unfortunately, Larry Davis' story is not unique: Travis County has a long history of making DWI arrests of drivers who blow well under a 0.08.

On average, Travis County throws out one-third of DWI cases because they wouldn't hold up in court. For comparison, Tarrant County dismisses only five percent.

In many of those cases, drivers are arrested after their Breathalyzer tests show that they are driving legally. Still, they usually are booked, spend the night in jail, and rack up legal fees.

Additionally, the DWI arrest stays on the individual's criminal history even if the case is thrown out.

According to the Statesman,

They [the Austin Police Department] defend their work, saying that among suspects who gave a breath or blood sample last year, fewer than 5 percent were under the legal limit of 0.08. Police said they compiled that statistic for the first time recently because of questions from reporters.
They say that on a nightly basis, they must confront the decision of whether to arrest a possibly drunk motorist or let them drive away. Allowing them to stay behind the wheel is too big a gamble, even if it means sweeping up drivers whose cases are later dismissed, they said.
Police also said that they must only have probable cause to arrest a driver, a standard much lower than the reasonable doubt prosecutors must prove.
"The bottom line is, it is not an exact science, but it is a pretty good science," Austin Police Chief Art Acevedo said. "There are going to be times when you arrest somebody that displays objective symptoms of alcohol intoxication or being under the influence of alcohol, and once we conduct our investigation, they may turn out not to be.
"I venture to guess the majority of our arrests are very good arrests."

I'm all for preventing drunk driving fatalities by making DWI arrests, but when officers are arresting completely sober drivers, Art Acevedo may want to address some flaws in the department's "pretty good science."

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