Simple Thoughts on the Reliability of the Breath Test

September 12, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Texas uses the Intoxylizer 5000 as its breath test machine.  Rather than discuss it in confusing and lengthy scientific concepts (which we’re happy to do in person), let’s discuss in general terms some if the problems associated with the machine.

Think of it as a scale in your bathroom that says you weigh anywhere from 50 to 170 lbs.  Not very helpful, is it?  This is for several compounding reasons.  First is the machine’s technology was created when the Atari video games were popular and Texas simply hasn’t found it cost-effective to upgrade.  Second is the machine piles assumption after assumption about the test-taker which may or may-not be true.

Also the machine – like any other mousetrap — can completely whiff on occasion.  The amount of ethyl alcohol it would take to score a false positive could fit on the tip of a pen as just one example.  The machine can be set off by GERD or gastro-intestinal reflux disease, can respond to environmental products used in the workplace, and has problems distinguishing diabetic shock from intoxication.

Again, we’re happy to discuss the science behind the Breath test in person… but understand just because the machine said it doesn’t mean it’s accurate!  It never hurts to scrutinize any test result.

When a Deep Lung Device is Required by Texas Law

March 7, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Deep lung devices (also called ignition interlock devices) are devices installed on a cars ignition which requires a clean breath specimen in order for the car to start.  Once the car is going, it randomly requires clean samples to continue.

I’m not sure exactly why, but deep lung devices are far more popular amongst judges today than they were even five years ago.  Part of the reason is because the law now requires these to be ordered on cars — but even so, it seems as though many judges are ordering them when it’s discretionary (meaning the the law leaves the decision to the judge as to whether to order it or not).

There are several times during a DWI case that a judge might have the opportunity to order the deep lung device to be ordered on a car.  First is upon arrest.  Tex.R.Crim.P. 17.441 requires a magistrate to make the determination upon initial arraignment as to whether an interlock device is required.  Although they are only legally required when a person is arrested for a subsequent DWI, the law allows the judge to order the device on the car anyway.  Often if there is an accident or if there is a high breath test score (which the judge knows about), then that often serves as their rationale for ordering the device on the car.

A second opportunity for the Court to order deep lung device on a car is during sentencing.  This is where the accused has either plead guilty or been found guilty after a trial.  A device is required for 1/2 of the probationary period in a 1st DWI conviction if the driver’s blood/alcohol level is in excess of 0.15 or if it is a subsequent DWI conviction.  Just the same as with the magistrate judge above, the judge controls the terms and conditions of probation — so even if there isn’t a breath test result above 0.15 or a subsequent conviction — the judge can order the device none-the-less.

A third time the Court would have the opportunity to order a deep lung breath analysis instrument is as a term of an occupational license.  An occupational license is a Court -ordered license which allows an individual to drive while their driver’s license is suspended.  Many judges will order the device as a condition of the occupational.

The Court can re-visit the deep lung device decision made by the magistrate during the case — if it was ordered in an instance that was discretionary.

The deep lung breathalyzer, while expensive, inconvenient and embarrassing can be used to your advantage during DWI proceedings.  With the device, there is a clear record of your history of compliance with the Court’s order.  If you have a device ordered on your car from the outset of your case — by the time the judge consider’s your sentence, you have objective and indisputable proof that you have been compliant with the court’s orders and are worthy of leniency.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.



“No Refusal Weekend” for DWIs in Dallas and Plano

May 30, 2010

Cities around North Central Texas are publicizing their “no refusal” policies this weekend for DWI enforcement in an effort to ramp up law enforcement and discourage impaired driving. Some have issued press releases to the media such as this one. They’re beginning to have these weekends routinely on Memorial Day, the Fourth of July and Labor day.

Although the press release doesn’t spell it out, what they are trying to communicate is that if you refuse to submit to the breath test, they’ll simply go to a magistrate that is on standby to get a warrant signed. That warrant will enable them to draw your blood, hence the “no refusal.”

In Texas, the police must be extremely careful not to coerce a person to voluntarily give a breath specimen. When a person is formally offered a breath test, they are done so through documents called dic-23, 24, and 25. Those documents lay out all the dangers and disadvantages of submitting to a breath test.

An officer cannot coerce or intimidate a person into submitting to a breath test in Texas. If an officer alters, amends, adds, or subtracts warnings (generally be editorializing his opinion in some way) about the warnings or what the resulting action may be — then they flirt with having the breath test thrown out under a line of cases called the Erdman doctrine. The vast majority of officers will read the dic warnings in a scripted fashion because they don’t want the results of the test thrown out.

The press release definitely walks a tight rope. They’re trying to curb drunk driving this weekend (which everyone agrees is a good thing). But, by over-publicizing the “no refusal weekend,” it is quite possible that people arrested for DWI submit to the breath test because they fear the police punish a refusal by jamming a needle into their arms. It is interesting, then, that the press release omits any references to warrants, and merely insinuates that medical personnel will just happen to be around.

Maybe they’re afraid some lawyer might try and put the press release into evidence during a trial down line to show the police are just trying to intimidate everyone into submitting to a breath test?

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice, you should directly consult an attorney.

What is the Punishment for a First DWI Offense in Texas?

March 23, 2010

All the hype and rhetoric over DWI enforcement in Texas causes people who get arrested to have the expectation of a very harsh punishment — like a felony conviction, having their arm lopped off, or a bright orange DD tattooed on their forehead.

DWI punishment isn’t a walk in the park, but it’s not quite that bad.

A first offense is a class b misdemeanor — which is in the middle of the misdemeanor range.  It’s punishable by a minimum confinement of 72 hours jail and/or a $2,000 fine.  While no lawyer can guarantee you any particular result, statistically the vast majority of convictions on first DWI arrests result in probation.  This means that any jail time assessed may be put off while you complete community service and various other tasks such as a victim impact panel.  There is no deferred adjudication for DWI cases in Texas on any level.

Also if you’re convicted of DWI in Texas for a first offense — you will be assessed a surcharge for three years to retain your driver’s license of $1,000.00.  If you have a breath test result of above a 0.15, then the surcharge is bumped to $1,500 per year.

What I’ve been describing so far are the criminal aspects of a DWI.  The driver’s license suspension for a breath test refusal is a separate, civil matter, but is usually handled in conjunction with your DWI defense.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice you should consult an attorney directly.

Dallas Police Want to Do Blood Warrants for All DWI Arrests

March 16, 2010

The Dallas Morning News published an article yesterday stating that the Dallas Police Department would like to take a blood sample with every DWI arrest.  To accomplish this, they would need to take every case before a magistrate to determine whether there is probable cause to issue a search warrant and allow the police to draw the blood.

You can read the article here.

There are many concerns about this approach above and beyond what the City thinks the drawbacks to be (i.e. money).  The bottom line is that they presume everyone arrested is guilty.  You can only rationalize their thought process by skipping whole-heartedly over the presumption of innocence:

(1) It’s okay to cause bodily injury as defined in the Texas Penal Code by sticking a needle in someone’s arm to solve a misdemeanor offense;

(2) Stating that it will equal more guilty pleas and more convictions (again, only true if everyone you arrest is guilty); and

(3) turning our independent judiciary into de facto law enforcement by having them rubber-stamp every arrest for a search warrant.

Dallas police may be very careful about what they wish for.  Based on the article, it sounds like whether someone is taken for a blood test is a somewhat arbitrary decision by the officer right now.  Are the officers only taking the people they are positive will fail a blood test?  It wouldn’t be surprising to see a blanket policy result in far more tests results below or near 0.08 which could mean more trials.  And to speak DPD’s language, more taxpayer waste.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice, you should consult an attorney.