Man arrested for DWI despite negative breath alcohol test

Man arrested for DWI despite negative breath alcohol test

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You can get arrested for DWI in Austin even if you don't have any alcohol in your system. It happened to a man last year. He blew a .00. His charge was just dismissed.

The Blackburn Vargas Law Firm gave FOX 7 News a copy of APD dash camera video from the early morning hours of January 13, 2013. The firm represents 37-year-old Larry Davis.

According to arrest paperwork, an officer pulled Davis over for running a stop sign. On the video the officer's questions almost immediately move to alcohol.

Officer: "How many drinks did you have tonight?"

Davis: "One."

Officer: "Is that it? You had one drink, just one?"

The officer later says, "Nobody has just one drink."

The officer notes that Davis has bloodshot, watery, glassy eyes. He administers field sobriety tests. In the video you can see Davis lose balance while performing one of the tasks.

Davis was arrested, but would later blow a .00. The legal limit is .08. In late January a judge dismissed the case.

"I had one drink, watered down drink so there's no reason for it," said Davis.

Davis talked with FOX 7 about his arrest. This is what he says about the stumble on the video.

"I guess 'cause it was cold that night. It was 30 something degrees and I had on a thin shirt and pants and that's all I was wearing. I told him I was cold from the beginning," said Davis.

As far as having other substances in his body like marijuana Davis says no.

"I never smoked it before in my life," he said.

APD Detective Mike Jennings pointed us to the Texas Penal Code for this case. According to the Texas Penal Code, intoxicated means two things: not having the normal use of mental or physical faculties due to drug or alcohol use or having the alcohol concentration of .08 or more.

"If I test somebody and I'm getting the amount of clues on the field sobriety test where I'm starting to feel they're impaired. If I put them back in a vehicle, they go down the street, kill your family, my family or anyone else's you guys are looking at an entirely different story there," Jennings said. "APD is looking at a lawsuit, negligence of duty."

Jennings says the officer called for a specialized drug recognition expert to perform additional tests on Davis, but none was available. He says with increasing abuse of prescription pills, officers must take that type of impairment into account.

Jennings also says Davis' blood work was sent to the wrong lab. So THC, the active ingredient in marijuana was never tested for.

Jennings is working to get more drug recognition officers trained to help on DWI stops.

Davis says none of that would apply to him.

"It was a messed up situation," Davis said.

Davis is a professional driver and has struggled to find employment. He hopes that will change once the DWI is off his record.

Davis must pay $400 plus attorneys' fees to get that charge permanently off his record. He says he wants to file a complaint with the police monitor's office and that a lawsuit isn't off the table.

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