What Happens if I Failed the Breath or Blood Test in Texas?

What Happens if I Failed the Breath or Blood Test in Texas?
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A breath alcohol or blood alcohol test in Texas may be used as evidence that your blood alcohol concentration (BAC) was above the legal limit at the time you were operating a car. The legal limit in Texas is a 0.08. If you “fail” a breath or blood test and are charged with DWI in Texas, you should immediately contact an experienced DWI defense attorney knowledgeable in breath and blood alcohol analysis.


The Results of Failing a Breath or Blood Test

“Failing” a breath or blood alcohol test after an arrest for DUI or DWI can have several repercussions. If you are arrested for DWI and voluntarily provide a specimen of your breath or blood, and that specimen shows an alcohol concentration of 0.08 or greater, the Department of Public Safety will pursue a suspension of your driver’s license. If your BAC is 0.15 or greater, the Judge presiding over your case may require you install a deep lung device on any vehicle that you drive as a condition of bond. Also, a 0.15 or greater BAC may result in a Class A DWI being filed against you instead of a Class B.  The alleged BAC will also be used as evidence by the District Attorney that you were intoxicated while driving a car.

The blood or breath test will typically be administered anywhere from minutes to hours after you are stopped and investigated for DWI. Breath test results are immediate. It can take several months for blood alcohol test results to report back to the police department.

Possible Ways to Challenge a Texas DWI/DUI Breath Test Case

Like all measurement devices, the breath test machine must be calibrated regularly. The State will have the burden of demonstrating the instrument was calibrated at the time of your test. Machines can be unreliable, and if they are not regularly maintained, the accuracy of results may be called into question.

Certain circumstances may cause an erroneous reading on a breath alcohol testing device. These include acid reflux, burping, or acetone on the breath of a person with diabetes. Machine error can happen, and a lawyer who is well-versed in the science behind the breath test instrument may spot potential error and call into question the validity of a breath alcohol result.

The timing of a breath test is another issue in a DWI prosecution. Let’s say you were pulled over at 10:30 PM, your last drink was at 9:00 PM and your breath test takes place at 11:30 pm. The State must prove that you were intoxicated at the time of driving – not the time a test was administered. Your alcohol concentration would have changed between the time of driving and the time the test was administered. There are 3 possibilities: 1. Your alcohol concentration was higher at the time you were driving, 2. Your alcohol concentration was the same at the time you were driving, or 3. Your alcohol concentration was lower at the time you were driving.

Possible Ways to Challenge a Texas DWI/DUI Blood Test Case

A blood alcohol test can measure the amount of alcohol in a blood sample. However, there are many ways a blood alcohol result may be challenged:

  1. Compromised blood tube used in the blood draw
  2. Unsanitary blood draw that introduces contaminants into the blood specimen
  3. Improper storage of the blood sample prior to analysis
  4. Faulty analysis due to failure by analyst to follow proper procedures
  5. Samples switched before or during analysis
  6. Instrument error

These are all clearly very scientific defenses. Once again, having an experienced DWI attorney who knows understands the science of blood alcohol analysis can make a huge difference in your case. There are plenty of ways to challenge a blood alcohol test, but only if your attorney understands the legal and scientific issue.

What Would Happen if I Refused the Test?

You can refuse to provide a breath or blood specimen when arrested for DWI in Texas, but it does come with consequences.  For one, you will be served with Notice of Suspension of your driver’s license for failing to provide a specimen.  You can challenge the suspension by requesting a hearing but you only have a small window of time to make the request. It’s called an Administrative License Revocation (ALR) hearing. You will need an experienced attorney to challenge the driver’s license suspension at your ALR hearing.

If you refuse to provide a specimen, the police officer may obtain a search warrant to have your blood drawn without your consent. If this occurs, it is important that you don’t resist the blood draw. You could get harmed by the police and they may charge you with Resisting Search.

Whether you refuse a test or give consent, you will need a knowledgeable DWI lawyer to challenge the test results.

Deandra Grant

Deandra M. Grant, JD, GC, MS is a 27-year criminal defense attorney and forensic consultant. She is the Managing Partner of Hamilton Grant PC’s five offices in DFW and Austin. A national speaker on DWI law, science and trial skills, as well as the co-author of the annually updated The Texas DWI Manual, Deandra is known as “The Lawyer Lawyers Call”. She’s also VP of Living the Doxie Dream Rescue and Sanctuary in Royse City. When not “lawyering”, Deandra is a wife, mom, painter, wine collector and dog rescuer.

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