What if My Breath Test Result was 0.08 or higher?

If you have been arrested and charged with a DWI or DUI in Fort Worth or in the surrounding cities of Tarrant County, Texas and your breath test result was 0.08 or higher and you are facing the prospect of a DWI trial, it is important to understand the true meaning of your breath test result.

It is important to understand that for your breath test result to be valid and admissible in court, the testing must be administered according to the rules established by the Texas Department of Public Safety.

Breath Testing Must Comply With Texas DPS Standards

Specifically, even with a breath test result over the legal limit, the result may not be admissible if the rules established by the Texas Department of Public Safety were not followed.

For example, the person administering the breath test must have been properly trained and certified as an Intoxilyzer Operator. If the person administering your breath test was not qualified, it is unlikely they followed the required procedures for the breath test to be admissible in Texas Courts.

15-minute Observation Period

The Intoxilyzer Operator is required to have performed a 15-minute observation period PRIOR to the administration of the breath test. During this time, the Intoxilyzer Operator is trained to make certain you have nothing in your mouth and have not burped or vomited in your mouth. This 15-minute period is critical to the reliability of the breath test.

For example, what if you have gum in your mouth and you regurgitate, or burp and alcohol enter your mouth from your stomach? This situation, if not monitored properly, could result in a breath alcohol volume reading that is extremely high and unreliable. If the Intoxilyzer Operator failed to observe the 15-minute observation period, your DWI breath test may be inadmissible in court.

Breath Test Results: The Margin of Error

Additionally, every breath test result must be evaluated individually to determine if the known variances and tolerance levels inherent in the Intoxilyzer 5000 can influence the determination as to whether you were intoxicated.

In other words, there is a margin of error on the machine of .02. Remember, the Intoxilyzer is a machine and it is not infallible. Technically, a breath test result reading of .08 could mean a real result of as low as .06 or as high as .10 because of the variance or margin of error built into the software of the machine.

Most importantly, a breath test result does not prove that you were intoxicated at the time of driving. Under Texas law, the prosecution must prove beyond a reasonable doubt that you were intoxicated at the time you were operating your motor vehicle.

A specific breath test result obtained hours after a DWI arrest provides no specific conclusions as to whether you were intoxicated at the time you were initially stopped for suspicion of DWI.

For instance, if you were pulled over at 8pm but you were not given a breath test until midnight, a breath test result 4 hours after you were driving does not necessarily show what your blood alcohol level was at the time you were operating a motor vehicle.

Breath Test Results: Machine Error

It is important that your DWI lawyer examine the test print out sheets and the maintenance records of the Intoxilyzer machine to make certain the machine was operating properly at the time of your breath test. There have been many instances when the margin of error on the machine is beyond what is acceptable for testing and the breath test result may be excluded based upon this finding.

Additionally, there may be other reasons the machine did not perform the test properly. Many times, there may be an error message on the test print outs because the mixture used to test the breath test with was not done properly or provides an inaccurate reading. Your DWI lawyer needs to make certain that the result being relied upon by the prosecutor will hold up in court.

Retrograde Extrapolation

Because a breath test result 4 hours after you were driving does not necessarily prove your intoxicated at the time you were driving, the prosecutor will team up with a Breath Test Expert, known as a Technical Supervisor, to attempt to rely upon Retrograde Extrapolation as a means of going back-in-time to determine your blood alcohol level at the time you were driving.

Is this possible? For a Technical Supervisor to perform the computations necessary to perform Retrograde Extrapolation, they will need certain information that only you could have provided during your interview with the police officers in the Intoxilyzer room at the police station.

Texas case law has established the minimum amount of information that would be needed in order to determine your blood alcohol level at the time of driving: weight, time of your last drink, and the period of time you had been drinking. However, there are other factors that can affect the accuracy of the retrograde extrapolation analysis (ex. How much you had to eat and when you ate it, etc.).

This is precisely why it is usually in your best interest NOT to answer any questions from the arresting officer after he reads you the Miranda Warnings. The questions being asked were specifically designed to be used against you to help the prosecutor and the Technical Supervisor put together a case of Retrograde Extrapolation as a means of trying to prove you were intoxicated at the time of driving.

Excluding Your Breath Test Results From Evidence

Remember, for your breath test result to be used against you in a criminal court, the State of Texas must prove that the procedures were followed, the machine was working properly, and the Intoxilyzer Operator followed the precise guidelines to determine reliability of the result. If any of these requirements were not followed, your DWI breath test could be excluded from consideration by the court.

If your breath test result is excluded from evidence, your DWI case becomes a case based solely upon the police officer’s opinion. Field sobriety tests results are usually based upon the police officer’s subjective opinion of your sobriety and there can be many reasons why someone would not pass a field sobriety test.

At The Hampton Criminal Defense Attorneys, PLLC, we even the odds for those charged with a DWI in Fort Worth or the surrounding cities in Tarrant County by ensuring that if your case goes to trial, you will be defended by a team of experienced Criminal defense lawyer in Fort Worth that have both misdemeanor and felony DWI experience. All our attorneys are Former Tarrant County Prosecutors with over 60 years of DWI law experience. Call The Hampton Criminal Defense Attorneys, PLLC now to schedule an appointment with the Tarrant County DWI trial team and receive a free evaluation regarding your DWI case.