If I Took a DWI Breath Test, Am I Automatically Guilty?

| Oct 16, 2019 |

If I Took a DWI Breath Test, Am I Automatically Guilty?Legally, yes. Like most other jurisdictions, Texas has a per se DWI law. If the defendant’s Blood Alcohol Content level is above the legal limit, which is usually .08, the defendant is intoxicated as a matter of law.

Pragmatically, no. Like all other machines, Breathalyzers are not always reliable. In fact, today’s Breathalyzers use the same technology which was developed in the 1920s. That old technology gives rise to a number of breathalyzer flaws, as outlined below.

A Weatherford criminal defense attorney can use these flaws to deliver a not-guilty verdict at trial or arrange a more favorable pretrial settlement.

Breath Alcohol to Blood Alcohol Estimates

Breathalyzers do not measure blood alcohol level, which is the legal standard in Texas DWI cases. Instead, Breathalyzers measure breath alcohol level, and a computer uses that measurement to estimate BAC level. That extra step is sometimes problematic, especially in .08, .09, and other borderline BAC cases.

During trial, Breathalyzer technicians dazzle jurors with tales of fuel cells and electrochemical conversions. These descriptions give jurors the impression that the Breathalyzer is something out of Star Trek.

To debunk this belief, and reinforce the breath-to-blood estimate, many attorneys partner with degreed chemists or other such professionals. These individuals tell the jury how the Breathalyzer was developed and how it works. Chemists and other professionals usually have more credibility than police Breathalyzer technicians. These people probably learned everything they know in brief, police-sponsored seminars.

Some Breathalyzer Flaws

The Breathalyzer is imperfect, but the flaws are only theoretical. To apply these shortcomings to a specific case, an attorney must focus on specific Breathalyzer flaws. Mouth alcohol, which may be the most prominent Breathalyzer flaw, is a good example.

Essentially, the Breathalyzer essentially collects tiny ethanol particles and measures them. So, if the defendant burps or belches prior to the test, ethanol particles from the stomach escape into the mouth. As a result, the ethanol count is artificially high, and so is the BAC estimate.

To help ensure accuracy in this area, the law requires officers to monitor defendants for at least fifteen minutes prior to the test. Over the years, courts have diluted this requirement. Currently, officers do not have to eyeball defendants for the entire time. In fact, they do not even need to be in the same room the whole time.

As a result, there may be no way to tell if the Breathalyzer result includes excessive mouth alcohol. The prosecutor must establish intoxication beyond a reasonable doubt. And, if the mouth alcohol question is unresolved, there is definitely some doubt as to the BAC estimate.

The Breathalyzer is not a perfect device. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. Home and jail visits are available.