DWI Breath Testing

In most DWI cases in Tarrant County, the law enforcement officer will ask you to submit to a breath test after the arrest. The legal limit for the Texas DWI statute is an alcohol concentration of 0.08 grams of alcohol per 210 liters of breath (often called the "per se" theory). See Tex. Penal Code Ann. § 49.01(2)(B).

Even if you blow below the legal limit, the prosecutor can also attempt to prove DWI under an alternative theory that the defendant drove while not having the normal use of mental or physical faculties by reason of the introduction of alcohol beverages into the body (often called the "normal faculties" theory).

Attorneys for DWI Breath Testing in Tarrant County, TX

The Fort Worth DWI defense attorneys at Law Offices of Richard C. McConathy represent clients charged with DWI in a case involving a breath testing result at .08 or above. In these cases, we perform an audit of the breath test machine used in your case to see if it is in compliance with the administrative rules for maintaining the breath test machines.

Your DWI attorney in Fort Worth, TX, will look carefully at your breath test including the testing procedures used, any abnormal things about the way you submitted to the test, any abnormal things about a medical condition that can impact your reading, problems with the testing procedures, and problems with the maintenance of the breath test machine.

In a breath test case, your DWI attorney should also be familiar with the evidential breath alcohol testing instruments and the most current revision of the Texas Breath Alcohol Testing Program Operator Manual. Fighting these complicated cases requires experience understanding the effects of alcohol on the human body, the operational principles of the breath alcohol testing instrument to be used, legal aspects of breath alcohol testing, and supplemental information which is to include nomenclature appropriate to the field of breath alcohol testing.

Your attorney should also understand the scientific principles concerning the effects of alcohol on the human body, the operational principles of the breath alcohol testing instrument to be used, legal aspects of breath alcohol testing, and supplemental information appropriate to the field of breath alcohol testing.

DWI defense attorney must understand the laboratory setting operating the breath testing equipment including the analysis of reference samples, as well as the analysis of breath samples from actual drinking subjects and completion of all required records and reports needed for documentation.

The most common reason that a breath test reading is excluded by the court from the trial is because the prosecution cannot show substantial compliance with the statutory and administrative rules for maintaining the breath test machine use in your case. 

To talk with an experienced breath test DWI attorney in Fort Worth and Tarrant County, call an attorney at Law Offices of Richard C. McConathy for a free consultation to discuss the particular facts of your case.

Call (817) 422-5350 today.


Definition of the Breath Alcohol Analysis in Texas

Pursuant to Rule §19.1(4), the definition of breath alcohol test (breath alcohol analysis) is the "analysis of a subject's breath specimen(s) to determine the alcohol concentration(s) thereof." To a jury, the results of the breath test are powerful evidence. It is an apparently objective measurement of the breath alcohol concentration taken by law enforcement under a maze of rules that are used to ensure the assurance of the results.

Evidence of a defendant's alcohol concentration, as shown by analysis of a specimen of his breath taken at the request of a peace officer, is generally admissible in a criminal trial for the offense of driving while intoxicated. Tex. Transp. Code Ann. § 724.064.

For the criminal defense attorney, in a breath test case, the first goal is getting the judge to suppress the breath test reading because of a violation of the rules. Breath specimens collected under section 724.064 must be taken and analyzed under rules of the DPS. Tex. Transp. Code § 724.001(7) and § 724.016.

In order for a laboratory analysis to be considered properly completed, the Breath Test Record must have all of the following:

  1. No invalid messages printed on the Test Record.
  2. All results clearly printed.
  3. All air blank results must be 0.000.
  4. No incorrect entries.
  5. The signature of the operator.

Fifteen (15) Minute Observation Period before Breath Testing

Your criminal defense attorney will look at the rules in place at the time of your breath test. The DPS had a rule requiring that an intoxilyzer operator “remain in the presence of the subject at least [fifteen] minutes before the test and [to] exercise reasonable care to ensure that the subject does not place any substances in the mouth.

The courts in Texas have sometimes found that direct observation during the 15 minute period is not necessary to ensure the validity or accuracy of the test result. 37 Tex. Admin. Code § 19.4(c)(1) (2014) (Tex. Dep't of Pub. Safety, Approval of Techniques, Methods, and Programs), repealed by 40 Tex. Reg. 129, 250–55 (2015).

In fact, DPS regulations no longer require that the subject be observed continuously for 15 minutes. Instead, the DPS regulations now require that the suspect needs to be in the operator's continuous presence for 15 minutes. The term "presence" is not defined in Section 19.3 or the legislative or administrative rules.


Section 19.3 of the Texas Administrative Code

The DPS adopted new amendments and sections to its rules governing breath tests, effective January 12, 2015, in order to reorganize, update, and clarify them. See 40 Tex. Reg. 129, 250–55 (2015). As a result, the rule regarding the fifteen-minute observation period is now contained in section 19.3 of the Texas Administrative Code. See 37 Tex. Admin. Code § 19.3 (2015) (Tex. Dep't of Pub. Safety, Techniques and Methods).  

Prior to January 12, 2015, the breath testing rule for the 15 minute observation period was contained in former rule 19.4(c)(1), the applicable rule that was in force at the time of his breath test. See 37 Tex. Admin. Code § 19.4(c)(1) (2014) (Tex. Dep't of Pub. Safety, Approval of Techniques, Methods, and Programs), repealed by 40 Tex. Reg. 129, 250–55 (2015). See Patel v. State, No. 01–14–00575–CR, 2015 WL 5821439, at *1 n.1 (Tex. App.–Houston [1st Dist.] Sep. 29, 2015, pet. ref'd) (mem. op.).

The rules for DWI breath alcohol testing in Texas can be found in Title 37 of the Texas Department of Public Safety rules in part 1 of Chapter 19. The most important administrative rules for breath testing including the following:


Pre-Trial Suppression of the Breath Test Results

Evidence that is obtained in violation of any provisions of the Constitution or laws of the State of Texas is not admissible at trial. Tex. Code Crim. Proc. Ann. art. 38.23(a). Generally, the failure to comply with an administrative agency's rules does not provide a basis for the exclusion of evidence under article 38.23, unless the applicable statute itself expressly requires compliance with DPS rules. See Tex. Transp. Code Ann. §§ 724.001(7), 724.016. 

In a driving while intoxicated case, the State's failure to collect a defendant's breath sample in compliance with DPS rules may necessitate either the exclusion of the analysis of that sample from evidence or an instruction under article 38.23. 


Problems with the 15 Minutes Observation Period

Your criminal defense attorney can object to the admission of his breath test results on the basis that the officer was not in the defendant’s presence to observe the defendant for a fifteen-minute period prior to administering his breath test. If the officer was not in the defendant presence for a fifteen-minute period prior to administering his test then your attorney can move to have the breath test results suppressed. 

For the 15 minute observation period after a DWI breath test, the applicable statute itself expressly requires a breath sample to be taken in compliance with DPS rules. See Tex. Transp. Code Ann. §§ 724.001(7), 724.016. A violation can lead to the suppression of the breath test result.


Jury Instructions on Breath Testing Procedures

If the results of the breath test are not excluded by the judge on a pre-trial basis, then at trial, your criminal defense attorney can renew that objection and also request the following jury instruction pursuant to Texas Code of Criminal Procedure Article 38.23:

You are further instructed that the Texas Department of Public Safety requires that a breath test operator be in the continuous presence of a subject prior to the administration of a breath test.

In considering these instructions, if you find from the evidence that the defendant was not in the continuous presence of the Defendant prior to the administration of the breath test in this case, you will not consider such evidence for any purpose whatsoever.

See Tex. Code Crim. Proc. Ann. art. 38.23. 

Although the court will not tell the jury that it should disregard the results of the breath test if it has a reasonable doubt about whether the breath test machine was in good working order, the defendant is entitled to an instruction about whether the officers and operators complied with DPS regulations regarding breath testing. 

In Atkinson v. State, 871 S.W.2d 252 (Tex. App. - Fort Worth 1994), rev'd, 923 S.W.2d 21 (Tex. Crim. App. 1996), on remand, 934 S.W.2d 896 (Tex. App. - Fort Worth 1996), the Court of Criminal Appeals approved the following jury instruction on the working condition of the instrument: 

You are instructed that under our law in order to be considered valid, a chemical test must be performed according to the rules and regulations governing such tests by the Department of Public Safety concerning proper techniques and methodology. Included in those regulations are: 

(1) continuous observation of the person tested for a minimum of fifteen minutes prior to the actual test; ...

If you have found beyond a reasonable doubt that each of these regulations were complied with you may consider such test and give it whatever weight you choose. If you do not so find or if you have a reasonable doubt as to whether these regulations were complied with you may not consider said test for any purpose and shall not refer to it further in your deliberations. 

Now the jury instructions will likely be changed to require only the observation period required by 37 Tex. Admin. Code Section 19.3(c)(1).


Rules Concerning Breath Testing in a DWI Case in Texas

In the context of breath test evidence, Section 724.064 of the Texas Transportation Code provides that at the trial of offenses under Chapter 49 of the Penal Code, which includes DWI, “evidence of the alcohol concentration or presence of a controlled substance, drug, dangerous drug, or other substance as shown by analysis of a specimen of the person's blood, breath, or urine or any other bodily substance taken at the request or order of a peace officer is admissible.” TEX. TRANSP. CODE ANN. § 724.064.

By enacting Section 724.064, “the Legislature has already determined that the underlying science is valid, and that the technique applying it is valid as long as it is administered by individuals certified by, and using methods approved by the rules of [The Department of Public Safety].” Reynolds v. State, 204 S.W.3d 386, 390 (Tex.Crim.App. 2006). For instance, in Mireles v. Texas Dept. of Pub. Safety, 9 S.W.3d 128, 131-32 (Tex. 1999), the court found that the Texas Legislature has statutorily recognized the scientific theory and technique behind breath tests.

As a result blood specimen test results are admissible even without proof that the underlying scientific theory is reliable. Garcia v. State, 112 S.W.3d 839, 848 (Tex.App.–Houston [14th Dist.] 2003, no pet.). In Slagle v. State, 570 S.W.2d 916, 921 (Tex. Crim. App. 1978), the court concluded that the State need not establish a predicate that a breathalyzer examination is a scientifically reliable test).


The BAC Reading is a Snapshot Taken Too Late

In a breath test case, the State must prove a defendant was intoxicated at the time of his offense, and not just at the time his blood was drawn. Kirsch v. State, 306 S.W.3d 738, 745 (Tex.Crim.App. 2010). In Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010), the court concluded that the prosecution must establish a “temporal link between the defendant's intoxication and his driving.”

In Williams v. State, 307 S.W.3d 862, 868 (Tex.App.–Fort Worth 2010, no pet.), the court found that unextrapolated intoxilyzer test results were “highly probative” to demonstrate whether a defendant was intoxicated at the time he was driving.

Likewise, in State v. Esparza, 353 S.W.3d 276, 283-84 (Tex.App.–El Paso 2011), aff'd, 413 S.W.3d 81 (Tex.Crim.App. 2013), the court found that breath test results administered several hours after the alleged offense were admissible, even in the absence of retrograde-extrapolation testimony, because the results tended “to make it more probable that he was intoxicated at the time of driving.”


Breath Test Technical Supervisor Affidavit in Tarrant County

The breath test technical supervisor affidavit is contained in a form known as DIC-56 which was last revised on February of 2001.

STATE OF TEXAS COUNTY OF TARRANT COUNTY

Before me, the undersigned authority, personally appeared _____________, who, being by me duly sworn, deposed as follows.

My name is , I am over 18 years of age, of sound mind, capable of making this Affidavit, and personally, acquainted with the facts herein stated.

I am the custodian of the records and the Certified Technical Supervisor for Area, Texas Breath Alcohol Testing Program. This affidavit is made in accordance with the provisions of Texas Transportation Code Section 524.038, or for the purposes of Texas Transportation Code Section 522.106.

On or about ______ on a breath test was administered to a subject by the name of DOB.

The test was conducted on a certified instrument, namely a Model 5000 Intoxilyzer, serial number __________, as part of the certified breath test program at _________________ , TEXAS. The test was conducted by a certified breath test operator who is trained in the required methodology for breath

testing, namely , # .

The records show that the test was administered in compliance with the laws of the State of Texas and Regulations of the Texas Breath Alcohol Testing Program. Further, the records show that the aforesaid instrument was reliable and in proper working condition at the time of the test. The test is, therefore, a valid test according to the aforesaid Regulations.

Analytical results of the aforesaid test disclosed alcohol concentration of __________, both of which were valid analytical results.

Signature

and

SWORN TO AND SUBSCRIBED before me on this day of
Notary Public’s Signature, State of Texas

SEAL


Additional Resources

Section 19.3 for Breath Test Techniques and Methods - Find the public safety and correction rules in Title 37 of the Texas Department of Public Safety rules in Part 1 of Chapter 19 for Breath and Alcohol Testing regulations. Those rules include §19.2 Instrument Certification, §19.4 Operator Certification, and §19.5 Technical Supervisor Certification.


Finding a DWI Breath Test Lawyer in Tarrant County, TX

Our Fort Worth DWI attorneys are familiar with the procedures used by the technical supervisor for the Breath Alcohol Testing Program in Tarrant County. We also understand the Texas Department of Public Safety (DPS) requirements for breath testing including the requirement that the Intoxilyzer operator observed the defendant for a fifteen-minute period prior to administering a breath test to that person.

Call an attorney at (817) 422-5350 to discuss the particular facts of your case, the penalties that might apply if you do not avoid a conviction, and the best defenses that can help you fight the case.

Call us to find out how violations of the administrative rules might apply to your case. Call (817) 422-5350 today.


This article was last updated on Monday, April 3, 2017.

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