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Austin Criminal Lawyer

Frequently Asked Questions

Q: If I am arrested for driving while intoxicated and the officer requests a breath test, should I give one?

A: Despite the old saying, “Never say never,” it is safe to assert that a DWI arrestee never should take a breath test.

First, if you blow at or above the legal limit of 0.08 grams of alcohol per 210 liters of breath, you will have given the prosecutor a supplemental theory of prosecution in addition to the traditional theory that you lost the normal use of your mental or physical faculties through the intake of alcohol into your body. Using the breath test theory of DWI, the prosecutor will argue that the State does not have to prove that you look, act, or sound intoxicated; only that you have the requisite amount of alcohol in your lungs. Moreover, the prosecutor can present both theories of DWI at trial, then urge the jury to pick whichever one it likes best. By taking the breath test, you essentially have doubled the State’s chances of convicting you and made your defense attorney’s job twice as hard.

Second, the certified breath test instrument in Texas, the Intoxilyzer 5000, does not measure up to the standards of accuracy set by the gas chromatograph blood testing equipment typically available in hospitals and crime laboratories. If you truly feel that you are not intoxicated and would pass an alcohol test, it is smarter to request a blood test rather than submit to a breath test. Remember however, that the test might reveal drugs in your system other than alcohol. A DWI in Texas can be the result of alcohol, drugs, or a combination of alcohol and drugs. If your blood alcohol content is less than 0.08 grams per 100 milliliters of blood, but shows other drugs in your system, the State still may be able to make its case. Likewise, if you take the breath test and pass it, but nonetheless show outward signs of intoxication on the field sobriety tests or otherwise, the prosecutor still may pursue your case as a drug DWI or combination alcohol/drug DWI and try to convict you with the traditional “loss of normal use of faculties” theory of the offense.


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