The Breathalyzer

Understanding the Texas Breathalyzer

Texas uses the Intoxilyzer 5000 to administer roadside breath tests. It is important to understand that while these machines are supposed to report blood alcohol content (BAC), the most accurate way to determine BAC is to do an actual blood test. Instead, breathalyzer machines measure the amount of alcohol that one’s breath registers. The machines are designed as a “one-size-fits-all” meaning they assume everyone has the same normal levels of alcohol levels on their breath. This can be misleading and often leads to false readings. However, this is not the only problem with breathalyzer tests.

Understanding Implied Consent Laws

When a Texas resident applies for a driver’s license, they agree that should they be stopped and suspected of DWI, they will be required to submit to a breathalyzer test at the time of the stop. This law was challenged in court and in 2014, the Texas 13th Court of Appeals (The State of Texas v. David Villarreal), using a ruling from the U.S. Supreme Court, stated it was unconstitutional to demand a breath or blood test without a warrant. However, the problem is this ruling has not changed the fact there are serious penalties in Texas for refusing these tests.

The Penalties for Refusing Breath or Blood Tests

Texas takes the refusal of a blood or breath test very seriously and you will pay a price. If you are stopped for a first-time DWI could lose your license for 180 days. Second and third DWI charges could mean a two-year suspension of your license. Despite these penalties, we typically recommend those who are stopped for a DWI refuse breath tests and let us fight the results after the fact. This is true whether you believe you are going to pass the test or not.

Refusing and Failing Breathalyzer Tests

The primary reason you should not take a breathalyzer test is that you could fail. While failure does not automatically mean you will be found guilty of a DWI later, you will be eliminating a piece of evidence the prosecutor can use against you later. However, if you have taken and failed a breathalyzer test, there are ways we can fight back. Remember, whether you take the test and fail or you refuse to take the test, you are still likely to face an administrative license revocation.

Once you are arrested and facing a DWI charge, you have only 15 days to request a hearing with the Department of Public Safety (DPS). If this is a second or third DWI, refusing the breathalyzer test is even more important. Either way, you need to contact a Texas DWI attorney as quickly as possible after you are charged. Your DWI lawyer will be able to work with you through the administrative hearing process as well as help mount a defense against the DWI charges you are facing.

Defending Against Failed Breathalyzer Tests

As we previously mentioned, Texas uses the Intoxilyzer 5000 which has been used for many years; in fact, the technology is three decades old. The theory behind the machine is that a person’s blood alcohol level is 2100/1 (2100 parts of alcohol in the breath for every one part of alcohol in the blood). This, in of itself, is misleading if someone has a different concentration in their blood.

Once you start with this basic knowledge, there are physical factors which can impact the reliability of a breath test including:

  • Body temperature
  • Your individual diet
  • Whether the alcohol you consumed is being absorbed or eliminated
  • Specific medications you may be taking

Other Factors Impacting Reliability

Those who are submitting to a breathalyzer test have other factors working against them besides physical factors. The machines used to do these tests are supposed to be self-diagnosing which means if there is a failure of any kind, the machine will issue a warning. However, this also means they are not often tested independently for accuracy which could be problematic if the machine does have a malfunction.

Law enforcement officers who are administering a breathalyzer test are supposed to be trained in the proper use of the equipment. This training is not always thorough meaning the officer who administers the test may not have received proper training which puts you at immediate risk of a false reading.  Keep in mind, your DWI lawyer will look at this and other factors to dispute the accuracy of a breathalyzer test you fail.

Machine malfunctions may be difficult to demonstrate but there is another common problem with a breathalyzer machine. This involves calibration of the device which must be done with someone with thorough knowledge of the machine. If the calibration is off, the test results will not be accurate. The weather can make the readings bad as well, particularly humidity.

So, while you may think that since you have submitted to a breath test and failed that your hopes of fighting the charges are slim, keep in mind, a DWI attorney will question everything about the charges including the officer’s reasons for stopping you in the first place. You have rights and just because you are stopped and arrested for a Texas DWI charge does not mean that all hope is lost, it simply means you need an aggressive attorney who will fight hard to preserve your rights.

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