Texas Breathalyzer Testing May Face Scrutiny

A recent ruling in an out-of-state DWI case may have national implications, possibly affecting the way local authorities use breathalyzer testing in Texas.

The judge’s ruling determined that breathalyzer machines weren’t accurate in gauging blood-alcohol content higher than 0.15 percent. In that jurisdiction, penalties are more severe for higher driver BAC levels. Consequently, breathalyzer evidence relied upon by authorities in that jurisdiction’s most serious DWI cases might be subject to disqualification.

Under Texas law, DWI penalties are categorized by the number of times the driver has been arrested and his or her age at the time of arrest, and any BAC level higher than .08 may constitute the crime of driving while intoxicated.

Yet most Texas authorities use the same breathalyzer machines as in that out-of-state jurisdiction, the Intoxilyzer 5000, to measure the BAC of drivers suspected of driving under the influence. The technology in those machines uses infrared light to measure alcohol molecules in a driver’s breath. If more judges find that breathalyzer evidence to be unreliable, authorities may turn to other DWI evidence, such as blood tests.

Although blood testing is more costly because of the accompanying lab costs, many authorities prefer it over breath testing because it can screen for many different types of substances, including illegal drugs and unsafe levels of prescription drugs. However, many drivers might find blood testing to be far more invasive than a breathalyzer test. Others may be unsure of their rights when an authority inquires whether they will submit to such a test.

If arrested for DWI, a driver generally must submit to a breath or blood test for alcohol. However, the arresting officer is also expected to follow proper procedures. An experienced criminal defense attorney will be able to review the arrest record for such deficiencies.

Source: The Patriot-News, “Dauphin County DA to appeal breathalyzer ruling that defense experts say could have major impact on DUI cases,” Matt Miller, Jan. 3, 2013

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