Dude, you’re already arrested for DWI! He’s going to file the charges anyway under the first method of proving it, i.e. by having lost the normal use of one’s mental or physical faculties. He’s not going to "un-arrest" you! When he turned on his red and blue lights, the video camera automatically started and has been recording all that has happened. He’s on camera, just like you. His sergeant will review the video and ask, ‘why’d you let that guy go?’
So, if you blow and it’s below the limit, you’re still arrested and you get a free trip to the county jail. We once had a client who blew a 0.02 percent [¼ the legal limit], and he was still arrested!
If you blow and it’s above the limit, you’ve just given the prosecution more evidence against you. The saying is true, “if you’re in a hole, stop digging!”
DWI Breathalyzer Tests Aren’t Always Accurate
Here’s a little of the "science" behind it: Texas uses the Intoxilyzer 5000 and has done so for many years. The programming and mechanics are outdated. The machine isn’t even warranted by the manufacturer to be accurate! Imagine that? It is monitored and ‘checked’ by a person who is on the state’s payroll. He or she is not even a true scientist but is entrusted to mix the ‘formula’ which is the base for the machine’s tests. The machine has a tolerance of ±0.02, which means a test of 0.08 could be a 0.10 (over the limit) or 0.06 (under the limit). It is temperature sensitive. If you have a fever or your body is in a particular cycle, you will have an elevated reading.
There are many more things that could go wrong with the machine and the DWI breathalyzer. If you blow too long (the officer always says, "keep blowing, keep blowing") you will have an elevated test. Breathalyzer testing is a very technical part of DWI defense. That is exactly why our attorney attends as much continuing legal education in DWI law as possible so he can stay on the cutting edge of DWI Law.
What Defenses Are Available If I Took a DWI Breathalyzer Test?
If you are charged with a DWI after taking a DWI breathalyzer test, then you still have options. With the help of a skilled attorney, you can negotiate your charges down or fight your charges to get them eliminated.
Some of the common factors that we use to fight DWI breathalyzer test results include the following:
- Officer lacked probable cause to suspect you were intoxicated while driving
- Officer did not have proper training or qualifications to perform the DWI breathalyzer test
- Sample was taken too long after you drank alcohol
- Officer failed to properly observe you prior to the test
- There were inaccuracies in the testing equipment or improper maintenance of the DWI breathalyzer test
- You had a health condition that invalidated the results of the DWI breathalyzer test
- You used mouthwash or another alcohol-based health product prior to your test
DWI breathalyzer tests are extremely touchy and must be properly calibrated and maintained. If they are not, or if the officer did not have enough experience to properly administer the test, then your results may not be accurate.
An experienced attorney can challenge your DWI breathalyzer test results and work to have your charges eliminated. If you cannot get your charges eliminated, then reducing your charges to a lesser offense may also be an option. An attorney can help you make these decisions about your future.
Texas Implied Consent Law
In Texas, all drivers who are lawfully arrested for DWI, meaning there was probable cause showing the driver was under the influence of drugs or alcohol, have “implied consent” and are legally obligated to take a chemical test to determine blood alcohol concentration (BAC) or drug presence.
The officer can decide which type of test to give you—either blood or breath. However, the officer cannot force you to take the test with some exceptions. If you are in an accident that results in serious injury or death, then the officer may force you to take a chemical test. Similarly, if you have a prior conviction related to intoxication assault or intoxication manslaughter or a DWI with a child in the car, then the officer can force a chemical test.
Although we advise you not to take a DWI breathalyzer test, you should know that there may be penalties if you refuse it. However, those penalties may be worth avoiding since the results will provide additional evidence to the prosecutor if your blood alcohol content level is higher than legally allowed.
If you do refuse a DWI breathalyzer test or other chemical test, then you may face an administrative, or civil, suspension of your driver’s license of at least 180 days. For subsequent refusals, you may face up to two years of suspension of your driver’s license. However, these penalties can also be disputed by an experienced DWI attorney in Tyler.
Pre-Arrest Testing
Texas law does not require that you submit to a preliminary alcohol screening prior to arrest. If the officer wants you to take a DWI breathalyzer test before arresting you, you can refuse it without penalty. The officer may be trying to gather evidence to support probable cause for an arrest; however, you can refuse to provide that evidence in the form of a DWI breathalyzer test prior to arrest.
If you were given a DWI breathalyzer test either before or after being arrested, you should contact a DWI attorney who can help you evaluate your specific case. Every situation is different, so you deserve a unique defense strategy for your case.
Contact Us about Your DWI Breathalyzer Test
If you get arrested for a DWI, call John J. Eastland Attorney at Law, P.C. We will be glad to answer every question you may have and then educate you even more for the steps ahead. You don’t have to deal with this situation alone. Contact a DWI attorney who can stand beside you throughout the police investigation and in court, if necessary. Call John J. Eastland Attorney at Law, P.C. today at (903) 207-5525 or contact us online to schedule a free initial consultation with our knowledgeable DWI lawyer in Tyler.
