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DWI First - Breath Test

Have you been arrested for a DWI in Conroe, the Woodlands, Houston, or surrounding areas?  In these locations you may have been given the option to give a breath sample.  These are normally performed at the Montgomery or Harris County jail. ​

What happens if I blow over the legal limit of 0.08? 

The answer to this question depends on how you were given the breath test.  If it happened while you were out on the roadside then the breath test you were given is probably what is called a portable breath test.  If it happened at a jail facility in a separate room then you were probably given a breath test from a certified Instrument.  A test from a certified instrument will result in a suspension of your driver's license.  


Portable Breath Tests

Portable breath test results are not typically admissible in Texas Criminal Courts.  A good lawyer can get the results of a portable breath test struck from the record and redacted from evidence like police body camera footage and dash camera footage.  There should be no mention of a portable breath test during a trial on a DWI.  Portable breath tests are routinely suppressed by trial judges because they do not meet scientific requirements.


Certified Breath Testing Instruments

The scientific director for the State of Texas certifies individual breath testing instruments for use during DWI investigations.  Only results that have been properly authenticated and which come from a certified breath testing instrument may be admitted in court to prove that a defendant had a particular alcohol concentration.  However, prior to a jury trial, the Department of Public Safety will use results of a breath test that are over 0.08 to suspend your driver's license. 

In order for a certified breath testing instrument's result to be admissible the State of Texas has to call a "Technical Supervisor" to the witness stand to testify about the integrity of the instrument and its maintenance and error rate history.  A "Technical Supervisor" maintains records on one or more instruments referred to as an "Intoxylizer."

How does a breath testing instrument work?

When you get arrested for DWI you are typically taken to a county jail and either on scene or at the jail the officer will read you a form called the DIC-24.  It is a long winded and confusing form but at the end of the form the officer asks you to provide a sample.  If he says a sample of your breath and you consent he will take you down to the jail to perform the test.  Many police officers prefer this method because it prevents them from having to drive an accused citizen to the hospital and get the assistance of a nurse.  On no refusal weekends or special events in Conroe a nurse will be present at the jail to assist with blood draw measures.  ​

How do you beat a DWI with a breath test?

Attacking a DWI with a breath test starts with proper preparation.  Breath test instruments have maintenance logs and there could be irregularities in the logs which call into question the validity of test results.  There are also strict rules about how a breath test may be administered and proper 15 minute waiting periods must be followed.  If someone burps or vomits during the 15 minute waiting period then you must start the 15 minutes over again.  Failure to do so could lead to the breath test result being suppressed.  

Another way to beat a breath test is to determine if the two results are within tolerance and if the temperature on the reference sample.  Your lawyer can cross examine the Technical Supervisor, Police officer and even the person who helped administer the test.  

An arrest on your Breath Test DWI is not the end it is just the beginning. 

What is the punishment for a DWI with a breath test?

A DWI with a breath test between 0.08 and 0.14999 is classified as a Class B Misdemeanor with a maximum punishment of 180 days in jail and a $2,000 fine. 

Charges where a breath result is equal or greater than 0.15 become Class A misdemeanors with a maximum punishment of 365 days in jail and a $4,000 fine. 

There is also a penalty called a State Traffic fine of $3,000 for first time DWI offenders and $6,000 if the breath or blood test was greater than 0.15.

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