Ruben Garcia Villalpando, 31, had a blood alcohol level of .14 – nearly double the .08 legal limit, according to a Tarrant County Medical Examiner's report. That number came from blood taken at the hospital hours after the shooting.
Blood taken from an artery in the leg during the autopsy had a BAC of 0.098, and Villalpando's urine had the highest alcohol reading at 0.183.
His vitreous, or fluid in the eye, tested at 0.128.
Grapevine officer Robert Clark chased Villalpando's car into Euless on Feb. 20 and said the illegal immigrant kept advancing on him in spite of orders to stop.
Grapevine police back the officer and said he was threatened by Villalpando.
The victim's family has seen the dash cam video and is seeking for it to be released publicly, believing it will show that Villalpando's death was not justified.
Initially, Grapevine said it would release the tape when Euless had completed its investigation. But the Tarrant County DA insisted it not be released, saying it's part of an ongoing investigation.
The family's attorney, Domingo Garcia, said Tuesday he's filed suit against Grapevine police to have the video released.
"There is no death penalty in Texas yet for DWI, without a trial, nor does it change the fact that he was unarmed and had his hands in the air when he was shot. It's time they release the video tape," Garcia said.
Former prosecutor Toby Shook says he sees the district attorney arguing until the grand jury makes a decision it's still an open investigation.
"I think the D.A.'s office will be on firm ground stating that exception to the open records act," said Shook.
FOX 4 took the autopsy report to forensic pathologist Amy Gruszecki, who's not involved in the case, for her to interpret.
Gruszecki says the most accurate number is the hospital blood which was taken the night of the shooting, and not hours later, during an autopsy
"The hospital blood at 8:45 was .141, which is again, compared to the Texas legal limit of .008 grams per deciliter, was almost twice as high," said Gruszecki.
"It doesn't really matter what his levels…if he was intoxicated or if he was not, or just barely intoxicated," said Garcia. "The fact of the matter is a police officer doesn't have a right to shoot somebody for DWI and to not have an arrest and a jury trial on that issue."
Villalpando was an illegal immigrant who'd been arrested nine weeks earlier in Lewisville on a DWI. The arrest affidavit from Dec. 12 says he was going 78 in a 60 and his blood alcohol level was nearly three times the legal limit.
"Address the argument that he wasn't obeying commands because he was intoxicated," FOX 4's Shaun Rabb said to Garcia.
"And you see that all the time when people are intoxicated," said Garcia. "They are a little bit slow…they have to grasp, but that does again, that doesn't give the right for the officer to shoot him."
There are some nuggets in the autopsy -- Villalpando was a big man, who was 6-foot-2 and almost 240 pounds.
The Tarrant County M.E. could not determine the distance between Officer Clark and Villalpando because the clothes he was wearing did not travel from the hospital to the morgue.
His shirt would have had soot or what's called stippling on it that the M.E. could have examined.
We know from what Grapevine police told us that it was a distance greater than one or two feet.