If police officers suspect you are driving under the influence when they’ve pulled you over for a traffic stop, they will more than likely request you perform a sobriety exercise. Texas law allows the police officer to arrest you if you fail the test. These tests are not accurate and some may believe they are actually designed to make a person fail, even sober, this test is difficult to pass.
If you are placed under arrest, the officer will then proceed with an Intoxilyzer test which requires you to blow your breath into a device (breathalyzer) to determine if there is any alcohol in your system. If this test shows your blood alcohol concentration is above or even at the legal limit, you will be considered intoxicated under Texas law.
If being charged for driving under the influence as a result of performing a DWI breath test, contact a DWI attorney immediately. You will want a strong legal defense to protect your rights and future against this charge. Being arrested due to the results of the DWI breath test does not mean you are automatically going to be found guilty. A strong legal defense can lead to a dismissal or reduction of these charges.
Equipment used in DWI Breath Testing
When you are stopped, and a police officer asks you to provide a breath sample, they are attempting to gauge your BAC. This test is done by having you blow into a breathalyzer, or breath testing machine. These machines are handheld devices the officer usually carries with them and can be used at the site of your stop. There are also desktop versions of these devices.
Handheld versions are called the Preliminary Breath Tests or PBT and are not as reliable as the mandatory breathing test devices, or the desktop version. Many times, you will be asked to perform the PBT on the site, and are then required to repeat the test at the police station using the desktop model. Remember, you do not have to take the PBT test on the site; however, this action does give the officer probable cause to arrest you.
The breath test is going to be administered approximately 40 to 45 minutes after the police have stopped you. In Texas, the legal limits for breath and blood are:
- If you are under the age of 20-years-old any amount detected is illegal
- If you are driving a commercial vehicle under a CDL license, the limit is 0.04%
- If you are 21-years-old or older, the limit is 0.08%
If you’ve been arrested and fall within one of these legal limits, do not assume you are automatically guilty. The prosecution is going to have to prove you were driving while intoxicated as there are numerous inaccuracies and flaws involved with breath testing equipment.
In Texas, the machine used in breath testing is the Intoxilyzer 9000. This machine has only been in use for a short time in Texas, even though other states have been using it longer. Just as the older models, the Intoxilyzer 9000 is based on the theory of infrared spectrometry. It will check for the presence of alcohol in your breath. By using infrared light, it will identify and verify the quantity of ethyl alcohol in your breath.
Ethyl alcohol absorbs infrared light in a special pattern to identify the alcohol and the quantity of it present in a breath sample. Analytical results in grams are provided by the Intoxilyzer 9000 per 210 liters of breath which are required by law under Texas Penal Code 49.01(1)(a).
The testing done by a breathalyzer presents a number of problems. It cannot measure the amount of alcohol in your blood or brain as it is designed to determine how much alcohol has dissipated from your blood and gone to your airway. By performing the breath test, police officers and the breathalyzer assume the amount of alcohol registering is the same in your blood as it is in your breath. The truth is several factors make this relationship inconsistent.
DWI Breath Testing Factors and the Relationship to Alcohol Blood Levels
Factors that can alter your link between the alcohol levels in your blood and what the breathalyzer test showed in your breath testing can vary by the breathing technique, the blood/breath ratio, and temperature.
- The breathing technique is your individual breathing pattern. How you breathe into the breathalyzer impacts the BAC reading. When your breath is shallow, the BAC results could read as high as 20% more than a true BAC level. There is no accurate test for determining how you were breathing at the time the test was administered.
- The blood/breath ratio is the basic principle behind the technology used with the breathalyzer. In every state, including Texas, the breathalyzer used measures the proportion relationship between your blood and breath at 2100 to 1. This measurement means for each part alcohol on your breath indicates there is 2100 times more alcohol in your blood.
- Studies disagree with this finding. It has been determined that the ratio is misleading and something closer to a range rather than a strict ratio. In reality, if your ratio is below 2100, which is a very realistic result, then your arrest is unwarranted. Breath to blood ratio can vary from brother to friend, you to your mother’s, or you to one of your siblings. This ratio can even change over time.
- The temperature your breath is at when the test is administered can make a huge difference in the results. If your body temperature is warm, the alcohol will diffuse from your blood into your lungs. The warmer you are at the time of the test, the higher your BAC reading will be. This factor plus the fact that everyone has a different body temperature by a couple of degrees affects how the test should be read. The breathalyzer is designed to assume your body temp is 34c; therefore, one degree above the 34c will increase your BAC reading by 7%.
It is not that the breathalyzer machine does not work; it is more about the purpose of its use does not correctly identify the results. Devices are only designed to give one an estimate, and not a certainty, which is not what the police officer arresting you will take into account.
Do I Legally Have to Consent to DWI Breath Testing?
Implied consent under Texas law requires all drivers arrested for a DWI to submit to a chemical testing. The testing is done to determine your blood alcohol content (BAC) or if you are under the influence of illegal drugs. The police officer has to have probable cause in order to stop you, and if during that stop suspects you are under the influence can then request you submit to one of two tests.
Implied consent under the law does not require you to submit to a chemical test before you have been arrested. The officer may be asking you to consent to the test to establish a cause for your arrest.
An officer stopping you can decide if he or she wants to test your breath or blood. Once you give consent, you do have the right to have a blood test performed by a physician of your choice within two hours of the police test. This test will be at your expense.
Legally the police do not have to allow you to contact an attorney prior to taking the mandatory breath test. Under Texas law, you are required to take this test. Refusal of the mandatory breath test can result in facing harsher DWI penalties. If you strongly feel that legal counsel would be to your advantage before testing, you can refuse and call your DWI attorney. Speak with them over the phone and explain your situation. Your attorney will advise whether you should wait for their arrival on the scene, or if you should go ahead with the breath testing.
The refusal of the mandatory breath test may trigger the police getting a warrant to draw your blood forcibly. If the warrant is given, you then have no legal right to refuse a test. The police have the authority to hold you down in order to draw blood, and if this action is necessary, you could face additional charges. These laws are fall under the No Refusal Weekend Program enforced in many states across the country by both state and federal governments as a push in handling DUI and DWI cases. There are certain circumstances where you are not allowed to refuse BAC testing. These circumstances include:
- If you have been involved in a vehicle accident where serious injuries are involved or if someone died because of the accident
- If you have a criminal record with a prior conviction for intoxication manslaughter or intoxication assault.
- If you have a criminal record with two previous DWI convictions or one prior DWI conviction while you had a child in the vehicle
The police officer is obligated to explain your consequences if you refuse to test. These consequences could include jail time, losing your license, and a fine. You must also be advised of your rights which do not include having an attorney present prior to the testing and refusing to allow the test to be administered will be held against you in court.
Penalties applied for refusing the testing start at a 180-day suspension of your license. This suspension could lead to a two-year loss of your driving privileges if you have a drug or alcohol related ‘enforcement contact’ on your record within the past ten years. An ‘enforcement contact’ means you have a DWI conviction, have failed BAC tests previously, or have refused BAC tests previously.
Can I Be Arrested if DWI Breath Testing Does Not Show Intoxication?
If the DWI breath testing administered does not indicate intoxication, the prosecution can still proceed with charges under a theory that intoxication was present at the time of your arrest. They may claim the presence of a controlled substance, a drug, or alcohol and another substance may have caused you to be in a toxicity state. If they are able to prove you exhibited a loss of physical or mental faculties, then they will proceed to a conviction.
Their belief may stem from the fact that there are so many variables in the reading of BAC results. These results are unreliable depending on the number of drinks you consumed, the type of alcohol you were drinking, whether or not you had any food during the time of drinking, your current weight, and even the time when the test was administered.
These same variables can be used in your defense with the presence of an experienced DWI attorney. If you or you know of someone who is facing DWI charges, contact an attorney immediately. Having a conviction on your criminal record for this charge will significantly impact your future.
DWI Breath Testing Bias
The breathalyzers used to check one for alcohol limits are not set to measure the average female. These devices are designed more for the average male. The breathalyzer assumes everyone who blows into it is at the same average weight and the same sex, which results in the test findings varying. This variance in results also means it could be different results depending on your financial detriment, emotional state, and legal situation.
Since BAC readings are often the main contributing factor in a DWI conviction, it is extremely problematic that the readings can be affected by so many outside factors. Your health when the test was administered plays a large part in how the results will read. Diseases such as diabetes, liver disease, heart disease and conditions such as heartburn, fever, gum disease and other health-related issues can impact how the breathalyzer reads your results. Specific diets such as the ketogenic diet will affect the results as well.
Gastroesophageal Reflux Disease is one condition that will significantly impact the BAC readings on your breathalyzer test. This disease can create a false positive or test reading error. The machines are designed to measure the alcohol content in your lungs lining. The lining is reported to provide the most accurate measurement of alcohol content; however, medical professionals disagree with this fact.
Medical experts will testify that the most accurate measurement of blood alcohol content can be found in the deepest air found in a person’s lungs. If you suffer from Gastroesophageal Reflux Disease, alcohol is able to move from your stomach to the back of your throat making your readings on the breathalyzer to register much higher. Even if you do not suffer from this gastroesophageal disease, if you’ve eaten a meal that produces acid reflux such as greasy or spicy foods, then your results on the breath testing will be skewed.
DWI Breath Testing Inaccuracies
Many factors play a part in obtaining accurate readings from a breathalyzer. These machines do not measure alcohol; they measure the level of a methyl group of chemical compounds which the machine assumes is ethyl alcohol. Infrared breath testers particularly use this form of measurements. The problem this creates with these machines is other chemical compounds could be present in your breath that will cause a false reading with your DWI breath testing.
Other chemical compounds that can be found in a person’s breath include:
- ‘Mouth alcohol’ which is created from dentures, burping/belching, vomiting, or periodontal disease
- Breathing in varnish fumes, oil-based paints, propane, or gasoline
- Use of over-the-counter medications such as cough syrup, cold medicine, toothpaste medicine, Nyquil, or Albuterol
- Use of oral hygiene products such as Listerine or other mouth wash products, breath spray, or breath strips
- Individuals who are on the Atkins diet, or if you have diabetes and are on a low-carb diet, you may have acetone production which will show on your breath
- Certain bread
- Smokeless menthol tobacco products
- Certain lip balms
- Foods that contain liqueurs
Studies show the presence of acetone can add a 0.06% BAC reading to existing alcohol content. This substance can even create a 0.06% BAC reading on someone who has not even consumed alcohol.
There is a myth concerning the breathalyzer as well concerning how a person can trick or purposely attempt to change the readings. Consuming mints, garlic, or onions will not affect the readings of the machine. These products can mask the odor of alcohol, but will not change the BAC readings.
Radio Frequencies Impact DWI Breath Testing
Radio frequencies are able to interfere with the Intoxilyzer 9000. Cell phones and police officer’s radios can also interfere with the performance of this device. The Intoxilyzer 9000 has been equipped with automatic detection, but this function is not completely accurate. Interference can occur which will affect the BAC reading. This malfunction could be used in your defense to have the results from this test suppressed during your trial.
Law enforcement in Texas are aware of the issue regarding radio frequency interference, but do not seem to take it into account when arresting a person they believe is under the influence. Law officials are allowed to give you two tests, and these two tests results can be within .02 of each other, and the Intoxilyzer 9000 allows for a difference of .20 between your two breaths.
This difference can cause problems in a case where your first testing reads .08, and the second one results in a BAC of either .06 or .10. One of these readings determines you are below the legal limit; however, the second testing puts you well above the legal limit. Texas law states this testing is legal and the results can be used in your prosecution. A strong legal defense can fight these results and is why you need an experienced DWI attorney to defend your rights if you find yourself charged with a DWI in Texas.
DWI Breath Testing Machines and Maintenance
In order for a breathalyzer to provide accurate readings, it has to be properly maintained and calibrated. These machines are intended to receive regular maintenance, or they can produce faulty results. Guidelines are given to law enforcement or any entity using these devices on how to maintain them in order to ensure they receive accurate results from tests. Police officers have a lot going on during a daily routine, and maintenance schedules are not always followed. It could work in your defense if the machine used in your breath testing was not properly cared for.
Texas has just recently begun using the Intoxilyzer 9000 so all officers will have had to be trained on how to perform breath testing on this device. Poor administration can result in poor breath testing and inaccurate readings. There are specific instructions police officers are to follow when performing DWI breath testing on the Intoxilyzer 9000. These steps to watch for if you are asked to provide a breath sample:
- Observe that the officer administering the test is waiting 15 minutes before asking you to perform the breath test. Waiting 15 minutes is in accordance with the Operator Manual for the Texas Breath Alcohol Program to ensure there is no residual alcohol present.
- The mouthpiece must be a clean one when asked to perform a breathing test. Check that the one you are asked to use has no signs of being used prior to your test.
- Ask the officer, if the opportunity arises, whether or not he or she has been certified on the Intoxilyzer 9000. If they are not certified on this machine, they cannot administer the test.
- Check if your external standard check resulted in the standard range of .075 to .085. If your results are not within this range, the test results can be suppressed.
The Intoxilyzer 9000 is capable of producing other useful results such as being able to generate histograms. Texas has decided they will not use the device to its full functionality or provide all the data it is capable of producing.
Find a DWI Attorney Near Me?
If you have been arrested for a DWI in the Fort Worth area, a conviction on your record could change your life forever as this is a very serious charge. Contact Andrew Deegan DWI Attorney at Law to receive the best legal defense against these charges. Call 817-470-2128 today and find the best legal representation possible to help you fight these charges.