Yes, you can be charged with DWI even though your blood alcohol concentration test result was under a 0.08. This is done through the alternative definition of intoxication found in the Texas DWI statute or through the state’s allegation that your BAC was higher at the time you operated a motor vehicle.The amount of alcohol in your blood is called your blood alcohol content (“BAC”). The legal limit for your BAC is 0.08%. For many people, it only takes two drinks to be over the legal limit. Some people can be over the limit after only one drink. Your BAC depends on more than just how many drinks you had, however. Your BAC will be different depending on many factors including how long it took you to drink the alcohol, what kind of beverages you drank, how much you had to eat that day (and what kind of food it was), your personal physiology, and many other factors. DWI investigators use blood tests and breath tests to calculate your BAC at a specific point in time, but these tests must be administered properly in order to be accurate.If your BAC was below the legal limit at the time the police tested you for alcohol, either through a blood test or breath test, and you came in under the legal limit, then you might still be prosecuted for DWI under the theory that at the time you were driving you were over the limit or that your mental or physical faculties were “not normal” even though you were under a 0.08% BAC. This happens more often than many people think. In this type of situation, the state is going to try to prove that your blood alcohol level was declining at the time you were driving. This, however, may very well not be true, and a DWI defense attorney should collect evidence to thoroughly investigate this theory.