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The not so Perfect Breath Test: To Blow or Not to Blow

Posted by: Nicole DeBorde
June 24, 2010
Topic: DWI Issues

People arrested for DWI are quick to question their breath test readings. As it turns out, they may be on to something . . .

Texas law sets the limit for driving while intoxicated at .08% Blood Alcohol Content (BAC). Breath tests (sometimes called "breathalyzer" tests or more correctly "intoxilyzer" tests since that's the latest machine in use) are the most common method used by police to determine whether a driver has breached this limit. In many cases, breathalyzer results are the strongest evidence the State has against an individual charged with DWI. Thus, Prosecutors would like juries to believe that the results of breath tests are always accurate. This is not a difficult task because the scientific nature of these tests can lead juries to believe that they are not susceptible to human error. As a result, juries might place a disproportionate emphasis on whatever number the machine spits out. Considering the power of breath evidence, one would hope that the results are reliable. Unfortunately, those numbers are not always correct.

In fact, many things can throw off a breath test reading. The internet is rife with articles and websites describing the inaccuracies of breath testing. Some relate to problems with the basic science involved. Others relate to how the machines are stored and how the tests are administered by police. One common thread runs through many of these issues: the necessity of human intervention at key stages in the process.

One of the key stages where human imperfection can have extreme consequences is in the calibration of the breath testing machines themselves. Just ask the citizens of Washington D.C. Last week authorities there discovered that about 400 people were convicted of DWI based on inaccurate breathalyzer results. About half of those convicted spent time in jail. On average, those confined spent five long days in the slammer.

The source of the problem was human error in the form of an inaccurate baseline, which tainted every single breathalyzer used by D.C. police. The badly calibrated equipment resulted in BAC readings that were at least 20% higher than they actually were. For example, a real BAC of .07%, which is below the legal limit in Texas, would have resulted in a reading of 0.84% and likely an arrest and conviction.

As with any major life decision, there are many factors to consider before deciding to submit to breath testing. Before you commit to blow or not, take into consideration the potential inaccuracies of the system. Attorneys who practice criminal law know that the results of these tests are far from perfect. A seasoned defense attorney can attack the State's case by pointing out the human and other imperfections associated with breath tests. If you have been accused of DWI, and you believe that the breath test readings were inaccurate, please don't hesitate to give us a call.


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