Problems with the DWI Breath Test

It’s hard to beat a DWI case at trial due to the anti-DWI propaganda rife in our culture of anti-alcoholism, MADD lobbyists etc. Everywhere we hear or read slogans such as:

  • “Drink, Drive, Go to Jail”
  • “Over the Limit, Under Arrest”
  • “DWI in Texas – You Can’t Afford It”

These slogans represent campaigns by powerful lobbyists and watch dog organizations such as MADD. Police are encouraged and given incentives to make DWI arrests but these result in many false arrests and procedural shortcuts. Further, there ARE often tragic consequences to driving while intoxicated. Therefore, even before we have a chance to present a DWI case to a jury – most jurors are predisposed to lock up anyone who might get out on the road and kill their loved one. We try to weed those jurors out but it’s not always possible to exclude everyone who might be biased against us at trial.

For years Texas has had a breath alcohol testing program without formal written Standard Operating Guidelines. This is because DPS was afraid that if it had written policies and standards then others might try to hold them accountable to their standards. But now DPS has a Scientific Director and, at least until they begin to water them down, the Texas Breath Alcohol Testing Program has written standards that supervisors must follow, scientifically and legally, for breath testing.

Breath Test does not rule out presence of drugs: Consider this – Even if you blow a .00 on the breath test you are not out of the woods since, if the officer feels you do not ALSO have the normal use of your mental and physical faculties, he is going to automatically think you are on drugs (which register a .00 on the breath test). And, whether prescribed or illegal – any drugs in your system that cause you to lose the normal use of your faculties while driving can lead to a DUI conviction.

Breath Test and Errors

Breath Test range of error: The Intoxilyzer 5000-EN breath test machine has an acceptable range of error. For example, the 1st and 2nd samples must be between .02 to be valid. So if you blow a .10 on the 1st one, your 2nd one must be either a .08 or a .12 or it is not valid. There are several other arguments we can use to lower the breath test reading based on the reference sample, such as whether at the time of the test it can be documented you were sick and running a fever, and other accepted margins of error, all of which add up to the rule of thumb that if you are contesting your DWI and you blew a .13 or under, we need to order and examine carefully all the breath testing records to see if it can be argued – either pre-trial to the prosecutors or during trial to a jury – that your breath test was likely at or under the .08 legal limit. This argument can be used together with other defenses we may have to win a dismissal or a Not Guilty trial verdict.

DWI DefenseThe Intoxilyzer has a host of other problems which we point out to our jurors at trial, the sum total of which often combine powerfully – in conjunction with other defenses – to win a Not Guilty verdict or a dismissal from the State. Here are just a few. They are so astounding it kind of makes one wonder how ANYone could rely on this machine as evidence of ANYone’s intoxication. (But yet the State of Texas does – every day – in thousands of cases.):

The manufacturers of the breath test machine provide NO WARRANTY that the machine is accurate or that it will do what it is was designed to do!

The “acceptable” range of error is 20%!

It has been recalled in several other states and newer models are available to law enforcement but aren’t used!

An ordinary citizen can’t purchase one from the manufacturer to inspect it or see how it works – yet it can be used on him to convict him of a crime and the manufacturer will not make it available for independent scientific testing.

The manufacturer refuses to provide source code!

Sometimes the officer who operates it does not understand it and the technician who does rarely checks the calibration or to see if it is otherwise working property!

And – the *biggie* – this machine DESTROYS the only “direct evidence” the State has of your so called intoxication – therefore, your breath sample is not available for independent re-testing!

The latest in Texas DWI defense is that the state is transitioning to the Intoxilyzer 9000. It was supposed to have been rolled out in Summer 2015 but problems with the software delayed its use in DWI arrests – which should already have raised quite a few concerns. There are about as many issues with the Intoxilyzer 9000 as the current Intoxilyzer 5000-EN – but for some unknown reason DPS chose to go with this new machine. As DWI defense attorneys we always try to get our cases dismissed pre-trial. But if we cannot:

  • We can and do argue the many inherent scientific problems with the Intoxilyzer in cross examination.
  • We can and do point out to prosecutors and jurors the flaws in forensic methods and machines.
  • We can and do inform juries about the limitations, the unreliability, and the inaccuracies in the breath testing used by the State.

Contact Houston DWI Attorney

If you have been charged with DWI, irrespective of whether you took the breathalyzer, contact The Haggard Law Firm today at (832) 328-0600 or email us for a free confidential consultation about your case. We have been fighting for people in Houston against DWI prosecution for over 30 years and have a verifiable winning record against DWI charges. We are ready to fight for your defense.

DWI Attorney Houston