Like all other states, the blood-alcohol concentration limit for
drivers in Texas who are over the age of twenty-one is 0.08. Should you
be arrested for drunk driving, the state is required to prove you were
driving while your BAC was over that limit usually. Should the arresting
officer be able to definitively prove through field sobriety tests as
well as his own observations that you were mentally or physically
impaired while behind the wheel, then even a BAC lower than the
established 0.08 may not save you from a DWI conviction. Added to this
confusion, it is well-known that breathalyzer tests have serious flaws
meaning your DWI attorney
may have solid reasons to challenge the reliability of your breath
test. The question asked by many is whether or not they should submit to
a breathalyzer test at all.
How Breath Tests Work: Theoretically breathalyzer tests work by measuring the amount of alcohol in one exhaled breath. A formula is used to calculate the “exact” BAC from that breath. However, this is an indirect method of measuring true BAC and there is a wide array of variables which can significantly alter the test results. As an example, when the device is used at an air temperature it has not been calibrated for, the results can be skewered. Likewise, variations in the barometric pressure, genetic blood chemistry variations from person to person, variations in each person’s physical fitness or activity level, the speed at which the person is breathing, the skill and experience of the officer administering the test, the age and quality of the testing equipment and even whether the person being tested burped or hiccupped prior to taking the test can affect the results. While you will want to take the advice of your DWI attorney, you should be aware that even if your BAC was over 0.08 or higher you don’t necessarily have to plead guilty to the crime of DWI.
Should I Submit to a Breathalyzer Test? Without benefit of an attorney by your side when you are pulled over, making the decision as to whether or not you should submit to a breathalyzer test is hardly an easy one. Suppose you are really not sure whether you are over the legal limit then it could be wise to refuse the test and avoid handing the prosecutor more evidence against you. Most people who have been drinking are probably not the best judges of what their BAC level will be. Remember also that even though 0.08 is the legal limit, assuming you exhibit other evidence of impairment a 0.06 reading falls within the established margin of error and you can still be charged with DWI.
If you refuse the breathalyzer you could be arrested for this refusal and be hit with a six month driver’s license suspension: This can happen because of the implied consent laws in Texas however an experienced DWI attorney may be able to overcome this suspension or at the very least assist you in obtaining an occupational license. In the end, it could be much harder for the prosecutor to prove the case against you if there is no real physical evidence that your BAC was over the legal limit or that you were driving under the influence. As stated, despite BAC proof to the contrary, you can be charged with a DWI based on your performance on field sobriety tests or the officer’s (subjective) observations. In many cases by the time the police officer asks you to blow into the breathalyzer machine you are already under arrest, so why give them more ammunition against you?
What Texas Politicians Think About Breathalyzers: Breathalyzer tests have been proven to have a margin of error as high as 30% under the best of circumstances and when the Lone Star State’s drunk driving statistics were looked at it was found that a full 100% of Texas elected officials refused to take a breathalyzer test when pulled over on suspicion of drunk driving. Compare this to the number of those in the general public who refuse to take the test—50%. Perhaps these politicians know what many of the rest of us do not—the consequences of refusing a breathalyzer test can often be lessened by calling a highly skilled DWI attorney. This would make refusal a better choice than handing over evidence that can only harm you at trial. One thing to remember, however: although you are legally within your rights to refuse both a breathalyzer test and the field sobriety tests, a particularly aggressive police officer can go out of his way to get a warrant for a blood draw, taking you to the hospital or jail to be forced to submit to the blood test.
Getting Legal Help Immediately: Whatever decision you make regarding the breathalyzer test, it is imperative that you call a highly skilled DWI attorney as soon as you are able. Don’t answer any questions other than your name and address and politely ask that you be allowed to call your attorney. The sooner you get a DWI attorney on board the sooner he or she can use their knowledge and expertise to introduce reasonable doubt, pointing out actions you took which were inconsistent with impairment.
How Breath Tests Work: Theoretically breathalyzer tests work by measuring the amount of alcohol in one exhaled breath. A formula is used to calculate the “exact” BAC from that breath. However, this is an indirect method of measuring true BAC and there is a wide array of variables which can significantly alter the test results. As an example, when the device is used at an air temperature it has not been calibrated for, the results can be skewered. Likewise, variations in the barometric pressure, genetic blood chemistry variations from person to person, variations in each person’s physical fitness or activity level, the speed at which the person is breathing, the skill and experience of the officer administering the test, the age and quality of the testing equipment and even whether the person being tested burped or hiccupped prior to taking the test can affect the results. While you will want to take the advice of your DWI attorney, you should be aware that even if your BAC was over 0.08 or higher you don’t necessarily have to plead guilty to the crime of DWI.
Should I Submit to a Breathalyzer Test? Without benefit of an attorney by your side when you are pulled over, making the decision as to whether or not you should submit to a breathalyzer test is hardly an easy one. Suppose you are really not sure whether you are over the legal limit then it could be wise to refuse the test and avoid handing the prosecutor more evidence against you. Most people who have been drinking are probably not the best judges of what their BAC level will be. Remember also that even though 0.08 is the legal limit, assuming you exhibit other evidence of impairment a 0.06 reading falls within the established margin of error and you can still be charged with DWI.
If you refuse the breathalyzer you could be arrested for this refusal and be hit with a six month driver’s license suspension: This can happen because of the implied consent laws in Texas however an experienced DWI attorney may be able to overcome this suspension or at the very least assist you in obtaining an occupational license. In the end, it could be much harder for the prosecutor to prove the case against you if there is no real physical evidence that your BAC was over the legal limit or that you were driving under the influence. As stated, despite BAC proof to the contrary, you can be charged with a DWI based on your performance on field sobriety tests or the officer’s (subjective) observations. In many cases by the time the police officer asks you to blow into the breathalyzer machine you are already under arrest, so why give them more ammunition against you?
What Texas Politicians Think About Breathalyzers: Breathalyzer tests have been proven to have a margin of error as high as 30% under the best of circumstances and when the Lone Star State’s drunk driving statistics were looked at it was found that a full 100% of Texas elected officials refused to take a breathalyzer test when pulled over on suspicion of drunk driving. Compare this to the number of those in the general public who refuse to take the test—50%. Perhaps these politicians know what many of the rest of us do not—the consequences of refusing a breathalyzer test can often be lessened by calling a highly skilled DWI attorney. This would make refusal a better choice than handing over evidence that can only harm you at trial. One thing to remember, however: although you are legally within your rights to refuse both a breathalyzer test and the field sobriety tests, a particularly aggressive police officer can go out of his way to get a warrant for a blood draw, taking you to the hospital or jail to be forced to submit to the blood test.
Getting Legal Help Immediately: Whatever decision you make regarding the breathalyzer test, it is imperative that you call a highly skilled DWI attorney as soon as you are able. Don’t answer any questions other than your name and address and politely ask that you be allowed to call your attorney. The sooner you get a DWI attorney on board the sooner he or she can use their knowledge and expertise to introduce reasonable doubt, pointing out actions you took which were inconsistent with impairment.
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