I have a DWI in which the Defendant was driving a commercial vehicle and blew a .05. My trooper says commercial drivers are considered intoxicated after .04. Can anyone point me in the direction of some authority for that statement?

.04 gets a commercial driver a one year CDL disqualification under TC 522.081.

Texas Transportation Code �522.081 (b) (2) and 49 USC �31310 (b)(1)(A)provide for a 1 year CDL suspension. However, there is no criminal offense under Texas law that covers this situation.

Notably, in over a dozen states, your driver would be subject to criminal penalties, including confinement, for operating a commercial motor vehicle with this level of blood alcohol concentration. See Alaska Statute �28.33.030(a)(2), Arizona Revised Statute �28-1381(A)(4), 21 Deleware Code Annotated �4702 and �4709, Kansas Statute �8-1567(a)(1), Minnesota Statute 169A.20 (6), Mississippi Code Annotated �63-11-30 (1), New York Consolidated Laws-Vehicle and Traffic �1192 (5), North Carolina General Statute �20-138.2(a)(2), Ohio Revised Code Annotated �4506.15(B), Tennessee Code Annotated �55-50-408, Virginia Code Annotated �46.2-341.24(B), and Wisconsin Statute 346.63 (5)(a). Unfortunately, Texas has not adopted a lower level for criminal prosecution of CDL drivers.

Related to alcohol and CDL drivers, Section 522.101 of the transportation codes states that a person may not drive while having a measurable or detectable amount of alcohol in the system. Can it be detected simply from smell or does a PBT have to be administered?

You can be guilty of DWI with a .05 alcohol in Texas if you have impairment of normal facilities.

Maybe there was some bad interaction with other medication taken by the driver or maybe its just a situation where some people are more affected by small amounts of alcohol?