I have a judge who is convinced that a breath test of under .08 is dispositive of the issue of intoxication, to the point of refusing to sign an arrest warrant if those facts exist. We are blue-in-the-face at trying to make the legal arguments, and am in need of some directly-on-point law that puts this to rest. The problem is, this is such a basic, universally-accepted issue, I am having difficulty finding something clear and straightforward. Thank you in advance for any direction.

SEE this case, the holding is not on your issue, but the dicta says exactly what you are saying. And you are right this is a "yeah duh". Just don't tell everyone here it is my fault the judge is not better trained. I did all I could.

(From R ALpert's excellent case summeries)

C. STATE DOES NOT HAVE TO SPECIFY WHICH DEFINITION OF INTOXICATION IT IS RELYING ON IN THE INFORMATION

State v. Barbernell, 257 S.W.3d 248 (Tex.Crim.App.2008).
The State does not have to allege in the charging instrument which defnition of “intoxicated” the defendant is going to be prosecuted under. The definitions of “intoxicated” do not create two manners and means of committing DWI. The conduct proscribed is the act of driving while intoxicated. The two definitions only provide alternative means by which the State can prove intoxication and therefore are not required to be alleged in the charging instrument. The Court found that its holding in State v. Carter, 810 S.W.2d 197 (Tex.Crim.App.1991) was flawed, and it was explicitly overruled by this opinion. This will greatly simplify charging language and may do away with the need for synergistic charges. Bottom line, when you say “intoxicated,” you’ve said it

I recommend you ask your judge to read the recent case of Crenshaw v. State from the CCA (reported in October's case summaries). In that case, the state had a BAC of only .08 and didn't use the per se definition in the charging in information. Still, the CCA found that inclusion of that information before the jury (and a use of the general definition of per se intoxication) was not reversible error because such evidence was relevant to the jury's consideration of whether the defendant was intoxicated under the subjective definition.

Seems to me that this is pretty strong support for what you are arguing.

Click here for case.