Art Acevedo, the police chief in Austin, Texas, has gone on the record in favor of creating a new DWI offense in Texas. Mr. Acevedo would like to add the offense of driving while ability impaired (DWAI) for motorists who are below the legal limit.
In Mr. Acevedo's world, any driver with an alcohol concentration of greater than .05 but less than .08 would be charged with the new offense. I guess that would do away with that pesky little matter of a driver blowing under the limit - and a jury wondering why he's on trial.
No one has proposed what category misdemeanor the new offense would be. My guess is it would be a Class C misdemeanor - the equivalent of a traffic ticket. It would make no sense to create a new Class B drunk driving offense. Would DWAI become the new "reduced charge" for those accused of DWI?
The proposed offense makes no sense on an intellectual level. If a motorist is stopped and the officer suspects he is intoxicated, the officer will administer roadside coordination exercises. If the motorist "fails" those exercises, he would be arrested for DWI and asked to blow into the breath test machine. At what point would an officer decide to arrest for DWAI? According to the NHTSA Manual, the roadside coordination exercises are designed to detect drivers with an alcohol concentration of .08 or higher; does this mean that officers will arrest drivers who "pass" the roadside exercises? If the person "fails" the roadside exercises an officer could not arrest for DWAI, because that person would have lost the normal use of their mental or physical faculties according to NHTSA - at that point it wouldn't matter what the driver's alcohol concentration was.
And, where's the scientific evidence that a motorist's faculties are impaired to the point of being a danger at an alcohol concentration of .05? There are people driving completely sober that are a hazard on the road.
The addition of a new DWI offense will do nothing more than pull more people into the reaches of the criminal (in)justice system.