YOUR DWI ATTORNEYS - HOUSTON:
BREATHALYZER TESTS
DWI Stops & Testing: Breathalyzer Tests
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The Breathalyzer Test in a Texas DWI – It is a good idea to know everything you need to know about a Texas breathalyzer test—before you are asked to take one. By the time you see the flashing lights behind you and the next thing you know you are being asked to take a Texas breathalyzer test after having a couple of drinks, you may be too shaken up to even know whether you should comply or not. DWI laws vary widely from state to state, but generally speaking, if you are asked to step out of your vehicle, the officer believes you are guilty of driving under the influence of drugs or alcohol, so remember the following:
- When you obtained your Texas driver’s license, you entered into an implied agreement with the state, meaning you implicitly agreed to certain rules and regulations.
- These implied consent laws can impact your immediate future, as well as your long-term future.
- If you refuse a breathalyzer test, you will incur an automatic 180-day driver’s license suspension, then if you are convicted of DWI you could spend from three months to six months behind bars.
- You might be better off taking a breathalyzer test, then having your Houston DWI attorney challenge the results in court.
How Can Your Texas Breathalyzer Test Results Be Challenged? As your Houston criminal lawyer can tell you, if you are asked to take a Harris County Breathalyzer test, depending on the outcome of the test you could be placed under a Harris County Arrest for DWI in Texas or DUI in Texas. Texas DWI laws can be complex, with steep penalties if convicted. Unfortunately, there are many variables associated with a Houston breathalyzer test.
When you blow into the Intoxilyzer or breathalyzer, the officer will see a reading of your breath alcohol concentration. If that reading is above the legal limit of 0.08 percent, the state of Texas would consider you to be intoxicated. In this particular instance, time could actually be on your side, since the Harris County District Attorney is required to prove you were intoxicated or impaired at the time you were driving. By the time the breathalyzer is administered, it could be forty-five minutes or longer from the time you were pulled over.
It is also important to note that the 0.08 percent legal limit is only for adult drivers. Texas has a zero-tolerance policy for those under the age of 21, meaning they are not allowed to have any detectable level of alcohol in their system. Further, if you have a CDL license, your BAC cannot be higher than 0.04 percent—even if you are driving your personal vehicle.
Problems with Harris County Breathalyzer Tests – There are a number of problems associated with Harris County Breathalyzer tests which can potentially work in your favor. The Intoxilyzer 9000 is generally used in the state, and bases its results on the absorption of infrared light as it searches for the presence—and amount—of alcohol in your breath. Factors which can render the results of the Intoxilyzer unreliable, include the following:
- The breathalyzer machine makes the assumption that the alcohol in your breath is equal to that in your blood—which may not be a reliable assumption.
- The temperature of your breath makes a difference in your BAC reading; the warmer your body, the higher your BAC reading. Further, the breathalyzer machine assumes your breath is 93.5 degrees—a number with fluctuates widely from person to person. Women, in particular have hormonal temperature fluctuations, yet only one degree above the “normal” breath temperature of 93.5 degrees can increase BAC readings by up to seven percent.
- Shallow breathers can have a breathalyzer reading of up to 20 percent higher than the actual BAC.
- Breathalyzers are calibrated for a “normal” male, meaning a breathalyzer test on a smaller than “normal” man, or a smaller woman can be falsely high.
- Your individual health or specific health condition can affect the BAC reading of a breathalyzer. Those running a fever, those with liver disease, diabetes, gum disease, heart disease or heartburn can test falsely high.
- Specific medications you are taking can result in a falsely high BAC result, including asthma medications such as albuterol, salmeterol and budesonide, Nyquil and other OTC medications containing alcohol and even the Anbesol in oral gels for toothache pain or mouthwash and breath sprays.
- Being on the Keto diet can result in a falsely high BAC result.
- Working as a painter who spends significant time in poorly ventilated areas can affect the results of a BAC test. The same is true for certain other chemicals, adhesives and varnish.
- Certain radio frequencies from cell phones or the police officer’s radio can cause the Intoxilyzer to malfunction, affecting your BAC reading.
- A breathalyzer machine could be improperly maintained or improperly calibrated, resulting in inaccurate results.
- The officer administering the Harris County Breathalyzer test could be improperly trained to administer the test.
- The officer may not have waited the required 15 minutes prior to administering the breathalyzer test.
- A clean mouthpiece might not have been used for your test.
So—Should You Refuse a Harris County Breathalyzer Test? It can be difficult to decide whether to submit to a Harris County Breathalyzer test or refuse the test. If you are unsure whether your BAC will be below 0.08 percent, you might possibly be better off refusing the test, rather than giving the Harris County district attorney more evidence to use against you during your trial. Remember, however, that most people who have been drinking may not have a realistic idea of what their BAC will be. Further, a BAC of 0.06 percent or higher could potentially fall within the machine’s margin of error. If you refuse the breathalyzer test, your license may automatically be suspended for six months (if this is your first Harris County arrest for DWI in Texas or DUI in Texas).
If you refuse and are subsequently convicted of DWI in Texas or DUI in Texas, you will face criminal penalties in addition to the license suspension. Whether you refuse the test or take the BAC test, if the Harris County police officer believes you have lost the “normal” use of your physical or mental faculties due to ingestion of alcohol or drugs, then you could still be convicted of DWI or DUI—without a BAC reading or with a BAC reading below the legal limit. As you can see, refusing the BAC test might or might not offer any benefits in the long run. Whatever decision you ultimately make regarding a Harris County breathalyzer test, the Sullo & Sullo Houston criminal defense lawyers have a thorough understanding of your situation—both legal and financial. We offer Houston criminal lawyer free consultations, and our overriding goal is always to help you avoid Harris County jail and a Harris County criminal record. If you are arrested on charges of DWI in Texas or DUI in Texas, do not wait—contact a knowledgeable Sullo & Sullo attorney as quickly as possible.
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