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Are Breathalyzer Results Always Admissible in Court?

By: Mark Diaz April 28, 2022 no comments

Are Breathalyzer Results Always Admissible in Court?

If you were recently arrested for Driving While Intoxicated (DWI) in Texas, it should come as a relief to know that breathalyzer test results are NOT always admissible in court. There is a wide array of circumstances under which evidence of your blood alcohol concentration (BAC) cannot be used against you, and the results of other chemical tests could also be inadmissible.

The Texas Department of Public Safety (DPS) annual publication on Crime in Texas reports that police arrest more than 67,700 people every year for drunk driving, but the number of convictions is far lower. Often, these defendants are able to beat the charges by getting breathalyzer test results tossed out of court or through other defenses.

Unfortunately, there is nothing automatic about BAC evidence being used against you. The prosecutor will introduce it and, unless you have a sound argument about why it is inadmissible, the court will consider it when weighing guilt. Plus, you must be proactive in presenting defenses throughout the entire criminal process, not just at trial. Retaining legal help is critical since Galveston County DWI attorneys have the experience and knowledge needed to develop a solid defense strategy. Some information on chemical tests and the admissibility of evidence may also be useful.

Breathalyzers and Portable Devices

Initially, you should understand how timing impacts the admissibility of test results. Texas is an implied consent state, which means all drivers agree to submit to a chemical test for BAC if requested by police. Like other US states, the legal limit is .08 percent BAC.

However, you only impliedly consent to such a test if you are already under arrest by an officer who has probable cause to believe you were operating a vehicle while intoxicated. Before that point, you are under no obligation to submit to the breathalyzer test. If the police pull you over and ask you to blow before arresting you, the refusal does not violate the implied consent law.

Plus, the results of a portable breathalyzer that police use in the field are not admissible in court. They are notoriously inaccurate, so the results cannot be used at the criminal trial to determine guilt – nor can they be introduced as evidence in administrative proceedings to determine the fate of your driving privileges.

Once you are under arrest and officers take you to the police station, this triggers the Texas implied consent law. At this point, the results of a breathalyzer test are admissible in court. You can still decline, but the implications are harsh. Keep in mind the following:

  • When you refuse to blow, your driver’s license will automatically be suspended for up to 180 days.
  • You might consider refusing a chemical test if you think your BAC is over .15 since enhanced penalties apply as compared to being over the legal limit of .08 percent.
  • Even after declining a breathalyzer test, police may have grounds to conduct a chemical test without your consent.
  • If you refuse to blow, you can still be convicted of drunk driving in Texas based upon impairment. Officers could testify about their observations during the encounter, such as your bloodshot eyes, slurred speech, and clumsy gestures. This may be sufficient evidence to sustain a conviction without proof of BAC.

Penalties for DWI in Texas

A first-time drunk driving conviction is Class B Misdemeanor, so you face 3 days to 6 months incarceration, a fine of up to $2,000 and an additional statutory fine of $3,000. Your driver’s license will be also suspended for at least 90 days to 1 year. The penalties increase for subsequent drunk driving convictions, so:

  • You could be jailed for 30 days to a year for a second offense, and the court may levy a $4,500 fine. You lose your driving privileges for 180 days to 2 years.
  • For a third time DWI, the mandatory minimum prison sentence is 2 years, though a judge could order up to 10 years’ imprisonment. The maximum fine is $10,000.

While other US states have a lookback period for purposes of prior convictions, Texas does not. This means any conviction in your past will be considered, no matter how far back it occurred.

If your BAC is in excess of .15 as measured by a chemical test, the crime is a Class A Misdemeanor. A conviction could mean 30 days to 1 year in jail, and the driver’s license suspension will be a minimum of 2 years.

Grounds for Contesting Breathalyzer

Since refusing to blow is a wise move under very limited circumstances, you should instead focus on the ways to keep breathalyzer test results out of court. You might be surprised to learn the constitutional law implications in these cases. The Fourth Amendment protection from unlawful search and seizure does not prevent officers from getting BAC evidence from you. Likewise, there is no violation of your Fifth Amendment right against self-incrimination. The court has held that public safety interests of reducing drunk driving outweigh these protections.

Still, because of the impact on your rights, there are strict rules on breathalyzers and other chemical test results. Not following them to the letter could provide grounds to toss the evidence. For instance:

  • Breathalyzer devices must conform to administrative requirements for maintenance and calibration. Failure to keep them in working condition could result in inaccurate results. Anomalies in the maintenance history might be useful evidence.
  • Proper use of breathalyzers requires special training, so they can only be operated by law enforcement officers with the right credentials. Use by someone not qualified could be grounds to find the test results inadmissible.
  • The timing of the breathalyzer test could also lead the results to be tossed. When several hours have passed from your arrest to transporting you to the station and sitting you down for the test, then the evidence is tainted.

Other Strategies in Texas DWI Cases

Contesting breathalyzer evidence is not the only way to fight drunk driving charges. There are multiple defenses that may apply to your case, and you may want to consider other strategies for resolving the charges. Some examples include:

  • Police must have a reasonable suspicion that you are driving under the influence of alcohol before pulling you over. This rule does not apply to sobriety checkpoints, however. In DWI cases, officers can meet this standard if they were speeding, made erratic lane changes, violated traffic laws, or otherwise demonstrated impairment.
  • Law enforcement cannot arrest you unless they have probable cause that you are intoxicated. A lack of probable cause means the arrest was unjustified, so evidence subsequently taken from you through a breathalyzer may be inadmissible.
  • If you are able to have the breathalyzer test results tossed, the prosecutor may be forced to rely on the impairment strategy to obtain a conviction. This approach is not as solid because it incorporates the subjective opinions of the officers who arrested you – rather than the scientific evidence of BAC. With a weak case, a prosecution might offer a plea bargain rather than risk a loss. This scenario is often termed “wet” reckless because you would plead down to reckless driving. Reckless driving is still punishable by jail time and fines, but you may not lose your license as you would with a drunk driving conviction.

Questions to Ask Your Galveston County DWI Attorney

This information about the use of breathalyzer test results as evidence in court is helpful, but it should also convince you that legal representation is critical. If you have never needed a lawyer for a criminal case or any other matter, it can be difficult to figure out where to be with finding out. By asking a candidate a few questions about your case, you are more likely to find the right fit.

  • What percentage of your clients are DWI cases? You want to know that your lawyer focuses on drunk driving cases rather than broader practice areas.
  • What are the strengths and weaknesses in my case? The answer to this question should help you make decisions on whether to plea bargain or take the case to trial.
  • How often do you try DWI cases in court? It is important to retain an attorney who has spent considerable time in court and has amassed solid trial advocacy skills.
  • Who will be the contact person at your firm? You want to ensure that your lawyer will be the primary point of contact, rather than having your questions and concerns handed off to a non-lawyer staff member.

Our Galveston County DWI Attorneys Aggressively Fight the Charges

It is true that breathalyzer test results may not be admissible in court, but you can see from the above that getting BAC evidence tossed is no easy task. Without a legal background, you are at a disadvantage going up against a prosecutor who handles DWI cases every day. By working with skilled legal counsel, you gain an edge in developing an effective defense strategy.

To learn more about the admissibility of the breathalyzer and other chemical test results in Texas drunk driving cases, please contact Criminal Defense Attorney Mark Diaz. Individuals in Galveston County and Greater Houston can schedule a complimentary consultation by calling (409) 515-6170. After reviewing your unique circumstances, our Galveston County DWI lawyers can advise you on potential defenses.

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