Man accused of killing 6-year-old boy while driving drunk actually had 0.00 BAC

HOUSTON, Texas (KTRK) -- Criminal charges for a man accused of driving drunk when he hit 6-year-old Darien Lewis with his truck and killed him have been dropped.

Pedro Hernandez, 52, was charged with murder and felony DWI in October following the death of the little boy. It happened in a parking lot on Leawood in southwest Houston. Houston police said Hernandez told them he had been drinking. He also had an interlock device on his truck because he was on probation for DWI out of Fort Bend County. Eyewitnesses said he ran over the boy more than once.

Hernandez was arrested at the scene.

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Wednesday, the Harris County District Attorney's Office filed the paperwork to dismiss the charges citing "insufficient evidence." A prosecutor told ABC13 Hernandez's blood alcohol content was actually 0.00. His defense attorney, Daniel Werlinger, said his toxicology report was clear of any intoxicants.

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"How did they get it so wrong," asked reporter Jessica Willey.

"Well, the fact of the matter is I think they jumped to conclusions," responded Werlinger. "I think they came out to a scene. You have a dead child. A man driving a vehicle that has an interlock on it .You run his information and you see he is on a current DWI, third probation and you just assume it is what it is, but after actually revealing the toxicological evidence, clearly those opinions, that were formed on that day, were wrong."

A prosecutor said surveillance video showed what appeared to be a tragic accident. Hernandez told police he did not see the child. His family and his defense team argued he would not have been able to drive his car with the interlock device on it had he been drunk.

"Of course, there is a level of vindication. From day one, the Hernandez family was absolutely, stone-cold, 100 percent behind the fact that he was not drinking the day in question," Werlinger said.

The victim's grandfather previously told ABC13 that "somebody's got to be held accountable." He said Lewis had autism. They were going to the store for a snack.