Should I take the breath
test or blood test?
I never urge anyone to take the
breath test because it has serious problems accurately
determining the quantity of ethyl alcohol present in a breath
sample. The machine is useful in determining whether any
alcohol is present, but deficiencies in the machine make test
results unreliable. Risking one's freedom, marriage, job,
driver's license, auto insurance rate, and loads of money on a breath test which
is inherently unreliable just doesn't make sense.
Breath tests in DWI cases are
far more common than blood tests. Breath test machines are
usually put in the jails for easy access by police, results are
available in minutes, samples are analyzed in an environment
completely controlled by police, and cheaper for the police than
taking and preserving a blood specimen. In breath test
cases, Texas uses the Intoxilyzer 5000.
Blood tests require more steps
and more time: a qualified person must draw the sample in
sanitary conditions, the officer must label and package the
sample for mailing, have it sent to the "crime" lab,
the lab must analyze the sample and notify DPS of the results,
and DPS must mail notice of suspension to the accused at his
A hospital blood test has
numerous problems, too. Blood tests are the exception in DWI
cases, rather than the rule, so detail here will be sparse.
Suffice to say that a hospital's emergency room blood test is
designed to produce a "quick and dirty" result to give
doctors an idea of what they are dealing with, not a result for
the technical, precise, and demanding arena of the courtroom.
As you might suspect, breath
test shortcuts don't favor the accused. One big difference is
that a blood sample is saved and can be retested by the defense
for accuracy, but the breath "sample" is literally
blown out of a hole in the breath machine. Inexpensive
technology is available to capture the sample for later, more
accurate testing, but Texas has chosen a state-wide policy of
allowing the sample to be "destroyed" in every case.
You might be interested to know
a couple more things about the machine. It strictly assumes that
your breath and blood have a direct ratio of 2100:1. Human
beings' true ratios range from about 1000:1 to over 3000:1. The
2100:1 assumption helps some people and hurts others. Are you
willing to take the risk that your result could be inaccurately
skewed up by as much as 50%? The machine also assumes your
breath temperature to be 34 degrees Celsius, which is about 93
degrees Fahrenheit. If your breath temperature is higher than
that, your test result will be higher than your true level.
The manufacturer of the
Intoxilyzer 5000 and DPS forbid anyone but law enforcement
personnel to inspect and test the machine's accuracy. Truly
scientific techniques and methods are generally subjected to
open and critical examination and testing by the scientific
community. Such a process ensures that the techniques and
methods employed are reliable and accurate. Defense
lawyers and experts hired by the defense are resisted at every
turn. It's no wonder that even the manufacturer of the machine
doesn't warrant the Intoxilyzer 5000 as fit for any particular
Police often try to get people
to take the tests to "prove" innocence. That attitude
loses sight of the basic truth that you are innocent unless
proven guilty. YOU ARE REQUIRED TO PROVE NOTHING about
your innocence. The government has the entire responsibility of
proving your guilt.
Be aware that refusing to take
the test or failing the test can carry severe consequences.
REFUSAL of a test can lead to a suspension of your driver's
license (or your privilege to obtain a license, if you don't
already have one) for 90 days to 1 year. Also, refusal to take a
test is statutorily admissible at your trial to imply that you
didn't take the test because you knew you would fail it. On the
other hand, FAILING the test (getting a .08 or higher), can
result in suspension of at least 60 days. You have a right to a
hearing on whether your license should be suspended, and it must
be requested as soon
Driving during a suspension
period constitutes a crime commonly called DWLS (Driving While
License Suspended). Penalties for DWLS are very similar to the
penalties for DWI, including an additional license suspension.
The news isn't all bad. Should
a jury or judge find you "not guilty" after a trial,
your driving record can be cleared of the suspension, and your
arrest can be removed from your criminal record.
Given the unreliability of
breath testing and the way Texas has chosen to conduct its
breath testing program, I will not advise someone to take a
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are for people 21 years or older, do not involve enhancements,
are not exclusive, and are limited to Texas.
**This page is for
informational purposes ONLY and must not be relied upon as legal
advice because it is NOT a substitute for the advice of a qualified
attorney, nor does it establish an attorney-client
Not certified by the Texas
Board of Legal Specialization.