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  • Writer's pictureBrian Foley

Houston DWI Attorney - Breath Test Information

Houston DWI Attorney - Exploring Breath Test Cases in DWI: Insights from a Houston DWI Attorney

Houston DWI Attorney - Breath Tests

Introduction: In today's blog post, we're delving into the world of breath test cases in the context of DWI (Driving While Intoxicated) with Brian Foley, a seasoned criminal defense attorney and the managing partner at Houston Criminal Defense Attorneys PLLC. As we explore the intricacies of breath tests, Brian shares valuable insights on what you should know if you ever find yourself in this situation.


Breath Test Basics: To establish that someone is intoxicated under Texas law, there are three primary methods: loss of normal mental faculties, loss of physical faculties due to alcohol or drugs, and having an alcohol concentration of 0.08 or higher in your breath.

Portable Breath Tests: Brian emphasizes the importance of understanding where the breath test took place. If it was conducted using a small portable device on the side of the road, it's referred to as a portable breath test. However, it's crucial to note that results from portable breath tests are generally not admissible in court due to the expert scientific evidence standard set by Rule 702 of evidence.


Brian's recommendation is to avoid participating in these tests, both on the side of the road and at the jail, unless you are confident you won't exceed the legal limit. Refusing the field sobriety tests might be advisable in some cases to avoid looking intoxicated on video.


Breath Test Considerations: In Montgomery County, just north of Houston, there are situations where options might be limited. If you know you're over the limit and the blood or breath test is your only chance at a favorable outcome, it may be in your best interest to take the test. This choice could impact whether you qualify for a pre-trial diversion program.


Instrument Evolution: Brian discusses the evolution of breath test instruments, from the Intoxilyzer 5000 to the Intoxilyzer 9000. While these devices have been in use for some time, they remain a source of debate and scrutiny in DWI cases.


Challenging Breath Test Results: For those facing a breath test case, Brian advises subpoenaing the technical supervisor and the instrument's records for a few months around the incident. This scrutiny helps ensure the machine's proper calibration, the integrity of the reference sample, and the absence of maintenance issues.


0.15 Threshold: A breath test can elevate the severity of your DWI charge if your blood alcohol concentration is 0.15 or greater at the time of testing. Brian notes that this determination must be made on the day of your arrest. If you believe you're significantly over the limit, you might consider consenting to a blood test, as it typically takes longer to process, potentially resulting in a lower charge.


The Mystery of Breath Test Instruments: Brian sheds light on how breath test instruments measure alcohol. These devices shine light through your breath and use a sensor to detect changes in light intensity caused by alcohol absorption. However, there's a catch – the manufacturers guard their calibration methods as trade secrets. This secrecy has led to questions about the reliability of breath test results.


Conclusion: Breath test cases in DWI charges are complex and multifaceted. It's crucial to consult with an experienced Houston DWI attorney like Brian Foley, who can navigate the intricacies of these cases and protect your rights. If you found this information valuable, don't forget to like and subscribe for more insights from Houston Criminal Defense Attorneys PLLC.

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