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Blood and Breath Testing in Texas DWI Cases

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Texas Transportation Code § 724.011 is otherwise known as the state’s implied consent law. Under this statute, a person arrested for an offense arising out of acts alleged to have been committed while they were operating a motor vehicle in a public place while intoxicated is deemed to have consented to submit to the taking of one or more specimens of their breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.

Under Texas Transportation Code § 724.035, when a person refuses the request of a peace officer to submit to the taking of a specimen, the Department of Public Safety (DPS) will suspend the person’s driver’s license for 180 days. If the person has previously refused a DWI test in the preceding 10 years, the period of suspension or denial is two years.

Were you arrested for DWI after submitting to or refusing a breath or blood test in Dallas? The Law Offices of RJ Harber aggressively defends clients accused of drunk and drugged driving in communities throughout North Texas.

RJ Harber has more than a decade of experience and is a former prosecuting attorney with the Tarrant County District Attorney’s Office. He can provide an honest and thorough evaluation of your case when you call (214) 389-1189 or complete an online contact form to receive a free consultation.

How Breath Tests are Conducted

The Texas Breath Alcohol Testing Regulations places requirements on any breath alcohol testing instrument that is to be certified for evidential purposes in Texas. The requirements include:

  • Expired breath specimens must be analyzed
  • The instrument must incorporate a reference system, and its result must agree within 0.01 g/210 L of the nominal value or limits set by the Scientific Director
  • Procedure specifics need to be adequate and appropriate for the analyses of breath specimens for the determination of alcohol concentration for law enforcement
  • Any other tests deemed necessary by the Scientific Director for correct and adequate evaluation in routine breath alcohol testing

The Texas Breath Alcohol Testing Program also requires an inspection to be performed every time an instrument is placed into or returned to service. When an Intoxilyzer 9000 is put into
service, an ABA test must be conducted, and a radio frequency signal must be transmitted to ensure radio frequency detection. Each active testing location should have an inspection performed at least once per calendar month.

The Texas Breath Alcohol Testing Regulations state that a breath test operator must remain in the continuous presence of a subject for at least 15 minutes immediately before the test and make sure the subject does not place any substances in their mouth. Only certified breath test operators can conduct the waiting period.

The Intoxilyzer 9000 is the breath testing device used by most police departments in Texas, and a person needs to blow into the Intoxilyzer 9000 with sufficient pressure to sound the tone for a minimum amount of time until the slope detector, which monitors the rate of change in the alcohol concentration of the breath sample, is satisfied. If the subject does not satisfy breath sample requirements within three minutes, the Intoxilyzer 9000 stops the test.

For a test to be properly administered, it must contain the following elements:

  • All air blanks must be 0.000;
  • The two subject results cannot differ by more than the specified amount;
  • Both calibration verification results and the reference sample solution temperature of both calibration verifications need to be in the acceptable range;
  • Test Complete must be printed in the Sequence of Analysis box;
  • The operator needs to provide a signature.

Records on instrument and simulator maintenance and repairs are required to be kept in the Maintenance File, which must contain a copy of records generated during an inspection of each certified instrument. For each instrument and simulator, the Maintenance File must contain notes regarding maintenance and repairs, including at a minimum the name, serial number, or other identifying information of the equipment, the date maintenance was performed, the individual who performed the maintenance, and documentation of what maintenance was performed.

How Blood Tests are Conducted

Texas Transportation Code § 724.017(a) stipulates that the only people authorized to take a blood specimen at the request or order of a peace officer are:

  • a physician;
  • a qualified technician;
  • a registered professional nurse;
  • a licensed vocational nurse; or
  • a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen.

Under Texas Transportation Code § 724.017(a-1), a blood specimen must be taken in a sanitary place. Texas Transportation Code § 724.017(c) establishes that a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic can take a blood specimen only if authorized by the medical director for the entity that employs them.

Such a specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. Under Texas Transportation Code § 724.017(c-2), a peace officer must observe the taking of the specimen and immediately take possession of the specimen for purposes of establishing a chain of custody when a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer:

Texas Transportation Code § 724.012(b) provides that a peace officer can require the taking of a specimen of the person’s breath or blood under any of the following circumstances when the officer arrests the person for an offense involving the operation of a motor vehicle and the person refuses the officer’s request to submit to the taking of a specimen voluntarily:

  • the alleged offender was the operator of a motor vehicle involved in an accident that resulted in death or serious bodily injury;
  • the alleged offender was arrested for DWI with a child passenger;
  • the alleged offender has been previously convicted of or placed on community supervision for DWI with a child passenger, intoxication assault, or intoxication manslaughter, or a similar offense in another state; or
  • the alleged offender has been previously convicted of or placed on community supervision for DWI, flying while intoxicated, boating while intoxicated (BWI), assembling or operating an amusement ride while intoxicated, or a similar offense in another state.

The major problem with a blood draw in cases involving controlled substances is that positive tests for controlled substances do not necessarily indicate that a person was under the influence of that substance at the time of the alleged offense.

Common Defenses Against Breath and Blood Tests

As noted, breath testing equipment like the Intoxilyzer 9000 needs to be regularly maintained. Failure to conduct necessary tests can lead to all tests performed on the instrument being inadmissible in court.

Improper maintenance can lead to inaccurate breath test results. In other cases, tests may be inadmissible if they were performed by individuals who did not have required licenses.

With blood tests, any one of multiple issues that can arise during the handling or testing of a sample that could contribute to a false positive. Again, tests need to be performed by authorized individuals.

If you were arrested for DWI after submitting to or refusing a breath or blood test in Dallas, it is in your best interest to quickly retain legal counsel. The Law Offices of RJ Harber is committed to helping people charged with DWI achieve the most favorable outcomes to their cases that result in the fewest possible consequences.

RJ Harber will conduct a diligent investigation of how your blood or breath test was performed and identify any mistakes or oversights. Call (214) 389-1189 or contact us online to have our lawyer review your case and answer all of your legal questions during a free consultation.