Should You Submit to a Breathalyzer Test?

By Manuel “Mito” Gonzalez

Nobody likes tests, so why do we take them?

Never, never, never take a breath or blood alcohol test!

There. I have given you the single best piece of advice for dealing with a DWI stop. If you followed this one piece of advice, you would increase the likelihood of being found not guilty in a DWI trial by at least 50%. You would almost certainly receive a better plea bargain offer, and you could even possibly avoid having an ignition interlock device placed on your vehicle.

So, if this advice is so good, why do people continue to ignore it and take the test? That, dear readers, ranks among the greatest of all mysteries along with who built the pyramids, who is buried in the tomb of the Unknown Soldier, and what happened to Jimmy Hoffa

Here is why I say, “Don’t take the breath test.” It is Not Fair to You.

Did you know the breath-testing machine used in Texas doesn’t actually test the sample for alcohol? It uses filters to “screen out” all the things typically found in human breath that resemble alcohol and whatever is left the machine presumes is alcohol. It is no different than having someone pour out a large jar of change and ask you to find the quarters. But, instead of showing you a quarter, they show you a penny, dime, and a nickel. Once you remove those coins, everything else is a quarter, right? Wrong. What about foreign coins of the same size, (thanks Canada for making your “Loony,” “Toony,” and quarter roughly the same size)? How about those dollar coins? Ever lose a Susan B. Anthony in a vending machine? How about the newer dollar coin with Sacagawea on it? Fifty-cent pieces?

You see the problem? Older machines had only three filters. We were told that was good enough, yet some years later two more filters were installed. Nobody went back to check the results of the old tests because no sample is captured or kept for retesting. The State just moved on like nothing happened.

Just like all machines that have a computer, the breath-testing machine is capable of detecting and storing large amounts of information. However, when that information demonstrates that the machine is not operating as advertised, the State doesn’t want the public to see that information. Currently, Texas uses a machine manufactured by a company called CMI. CMI also makes the operating system that runs the computer and testing equipment inside the machine. As made, the machine is capable of recording fluctuations in electrical voltage, interference from outside sources, and a host of other information. That information can be used–and has been used–successfully by defense attorneys to show that specific machines were not working as advertised when they were used on people arrested for DWI.

The State of Texas has its own operating system for the CMI machine called “Black Mamba.” Just as no one wants to get stuck with COBRA insurance coverage, Black Mamba isn’t good for you either. Things named after snakes rarely are. Black Mamba allows the State to tell the machine not to record certain types of information. Can you guess what type of information that might be? That’s right, anything that might help your lawyer show the machine wasn’t working properly when it was used on you.

Feeling good about taking the test now?

When the police request a sample of your breath or blood, they will inform you that if you refuse, your license could be suspended for 180 days. Also, if you take the test and fail, your license could be suspended for 90 days. Most people cite the possibility of a suspension as a reason they submit to the test. As explained above, there is no way for your lawyer to determine whether or not the test was administered fairly, nor is the sample you submit retained for future testing. Based on these circumstances, in my professional opinion a person is better off in the long run refusing the test, running the risk of an administrative suspension, and getting an occupational license if needed.

Aside from the general unfairness of the test, there are several additional reasons to not take this test. If you take the test and get a result above a .14, you get extra punishment. The way the law is written, if you go to trial the State has to prove you were a .08 at the time of driving. However, if your test result is a .15 or greater at the time the test is given, you are subject to having an ignition interlock placed on your vehicle while you await the conclusion of your case as a condition of your bond. That’s right. While you are out of jail awaiting resolution of your case you could have a breath-testing device hooked up to your car. And, you get to pay for this privilege.

If you plead guilty, depending on how the State alleged your DWI in the court’s file, and if there is evidence that your test result was a .15 or greater, Texas Code of Criminal Procedure Article 42.12 § 13(i) requires the court to order that you place the interlock on your car for at least half the time you are on probation. This is on first time DWIs!

Are you still willing to take that test? Are you beginning to see why the State so desperately wants you to take this test?

Here is the reality of DWI case management. Most of the time, you will get a better plea bargain offer if the State has no idea what your alcohol concentration was. Once they know, they are emboldened with regard to their chances of convicting you, so their offer is higher and they are much less willing to come down off that original offer. Given the realities of how prosecutors handle their dockets and how the law is stacked against you and the reliability of the machine used in Texas, there is no reason to ever submit to either a breath or blood alcohol test.

I am a defense lawyer with more than 16 years of experience. Having  spent ten years with the Collin County Criminal District Attorney’s Office where I held several positions including that of chief felony prosecutor and chief of the white-collar crime section, I bring an understanding of how the prosecution works to the courtroom with me.

If you have any questions or concerns about a DWI please contact me at 214-423-5100 or visit our web site at to arrange a free initial consultation.


About ahrlawfirm
Albin | Harrison | Roach is an experienced family law, business litigation and criminal law firm serving clients in Collin, Dallas, and Denton counties. We have made it our mission to put the true meaning of “counsel” back into legal services. At Albin | Harrison | Roach, legal services aren’t viewed as a series of isolated legal events but as a comprehensive resource to protect, enhance and simplify the personal and professional lives of our clients. Our highly-skilled attorneys practice in the areas of divorce and family law, business litigation and transactions, employment law, criminal defense, collaborative law, estate planning, wills and probate.

2 Responses to Should You Submit to a Breathalyzer Test?

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