You’ve been booked for a DWI/DUI, and the law enforcement officer who arrested you took a breathalyzer before doing so. You know the results were bad for you, and you may be feeling like a conviction is inevitable.
But it’s not inevitable.
In every legal case, your defense attorney should carefully examine any evidence prosecutors rely on. For drunk driving charges, they’ll scrutinize the test or tests that were used to determine whether you were under the influence. The timing of those tests matters and can be used in your defense.
Required Observation Before a Breath Test
A law enforcement officer will administer a breathalyzer test to measure your blood alcohol content (BAC) if they suspect you were driving under the influence. (You can refuse this, but they will probably get a warrant.)
In Texas, as in many other jurisdictions, the officer must remain with you for at least 15 minutes before they can administer a breathalyzer test.
The observation period is intended to make sure you do not eat or drink before taking the test. This should eliminate the possibility of mouth alcohol (ethanol that lingers in your mouth or throat after drinking) incorrectly inflating the results of your test.
Alcohol in the blood is present as vapor in your deep lung tissue, which a breathalyzer device measures when you blow into it. Breathalyzer tests yield meaningful results when they only test the air from your lungs. If you have alcohol in your mouth when you take the test, it will show a higher BAC than you actually have.
During the period of observation, you can’t put anything in your mouth. The clock must start over:
- If you eat or drink anything
- If you vomit
- If you otherwise risk contaminating your breath sample
The law enforcement officer must observe you continuously for those 15 minutes. If the test operator fails to follow the 15-minute guideline, the test can be considered inadmissible evidence and excluded from your case. Since breathalyzer results are often vital for the prosecution, this can lead to your case being dismissed.
Consequences of a Delayed Breath Test
Intoxication is not instantaneous; your BAC climbs over time. Theoretically, a person could drink enough alcohol to be intoxicated and drive some distance before they actually become legally impaired.
A delayed breathalyzer test can throw your case into question: you may not have actually been intoxicated when you were driving, but the lag in testing allowed your BAC to climb.
Reasonable delays are common and expected. However, a longer delay opens up the possibility of having the test thrown out.
The issue is not always whether or not you were intoxicated. Driving with a BAC over 0.08% is a Class B misdemeanor, but driving with a BAC over 0.15% can raise the charge against you to a Class A misdemeanor. Penalties are more severe for the upgraded charge.
If a test delay can be used to argue that you deserve the lesser charge, it’s worth exploring.
Contact a Skilled Texas DWI Defense Lawyer Today
Drunk driving cases are surprisingly complicated. A strong defense can make a substantial difference in the outcome of your case. If you want to give yourself the best chance, you need to choose the right DWI attorney.
At Lee & Wood, GP, we defend clients facing DWI/DUI charges in Texas. Contact us by email or call us at 817-678-6771 to speak to our experienced team.