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.


It’s Superbowl Weekend – How to Handle a DWI Stop

by Mito Gonzalez

It’s Super Bowl XLV weekend and, for many people, it’s time to party. Do you know what to do if you’re stopped by the police?

Well, do you?

Did you know the rights given to you by the Federal Constitution can be expanded by your individual State Constitution? Do you know how to enforce your constitutional rights? Most Americans know they have rights; they just don’t know what those rights are. Never is this more evident than during encounters between the public and the police.

After practicing criminal law for fifteen years, it seems to me that now, more than ever, people are under informed or just plain misinformed about their rights and how to interact with the police. The average person has more incorrect beliefs regarding their constitutional rights than the Federal Government has holidays. That ignorance almost always negatively impacts the average citizen. This situation cannot be remedied easily, but a few simple rules can help place you on the path to knowing and exercising your rights.

  1. You have the right to remain silent, use it.
    Believe it or not, most people get arrested because of what they say, not because of what they have done. If you are stopped by an officer all you must do is identify yourself. Where you are coming from, what you have been doing, and where you are going is none of his or her business. Everything you say and do in the presence of an officer is recorded. Don’t try to talk yourself out of a ticket only to get arrested for a greater offense.
  2. You have the right to be free from unreasonable searches and seizures.
    Pretty much any search of your person, car, or house without a warrant is unreasonable. Never agree to allow the police to search your car. You have no idea what someone may have left in your car and you will be held responsible for anything the police find.
  3. Field sobriety tests are voluntary – don’t take them.
    If the officer asks you to “take a few tests to make sure you are ok to drive,” you need to exercise your rights and just say no. The officer already believes you are intoxicated and is just looking to get you on video. These tests are not designed to test-driving skill and are not accurate at determining intoxication. Even when administered under perfect conditions, in a lab, with healthy young subjects, these tests have been shown to produce false positive indications of intoxication. None of these tests are used by doctors or in clinical situations and the medical community does not recognize them as accurate indicators of intoxication. If doctors don’t believe in them, why should you?
  4. Always ask for an attorney.
    When you have a problem with your health, you call a doctor. When your problem involves the law, call an attorney. In most cases, asking for an attorney will stop further questioning from law enforcement and give you the time and access to the information you need to make good legal decisions.

Now that you know your rights, I hope you enjoy your Super Bowl weekend.

Have more questions? Contact us. We have the answers.


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You have the Right to Remain Silent

You have the right to remain silent. Use it!

Most people know they have the right to remain silent.  Most people know that talking to the police is probably not going to help their situation.  Most people think their situation will turn out differently.  Las Vegas makes a living off of most people.  Don’t be like most people.

Long ago, my father told me about the theory of holes.  Namely, when you find yourself in a hole, stop digging.  The more you dig, the worse it gets.  The same could be said for talking to the police.  The more you talk, the worse it gets.

Lesson One – Nobody has ever talked their way out of trouble with the police.

Don’t fool yourself.  The police are as good at their job as you think you are at yours.  They interact with dozens of people every day and every person they deal with, with few exceptions, has one thing in common . . . they do not want to talk to that police officer.  So, the police have become experts in getting you to overcome your fear of talking to them.  They assert their authority; they allude to what might happen if you don’t speak with them; they even sometimes hint that the truth will set you free.  It won’t.  Use your right to remain silent.

Lesson Two – All you are required to do is identify yourself.

No matter what the officer says, all you are required to do during a traffic stop is show them your identification and proof of automobile liability insurance and get out of the car.  I suggest keeping your insurance attached to your sun visor and, if you think you are in a situation where you might get pulled over, (leaving a Jimmy Buffet concert, leaving a local bar or restaurant open late, driving anytime on a weekend after 2:00am) put you license there as well.

Lesson Three – The vast majority of people who are convicted got convicted because of what they said, not what they did.

Your mouth is your worst enemy!  The longer it is open, the more likely you will go to jail and later be convicted.  It is that simple.  The police are not entitled to know where you are going or where you are coming from.  Nor are they entitled to know how much you have had to drink.  Drinking and driving is extremely risky behavior, but it is legal as long as you have not lost the normal use of your mental or physical faculties.

The reason the police are asking you these questions is to get you to give them information that you believe to be harmless but, in most cases, will be used by a prosecutor against you.  For example, the reason the police want to know where you are coming from and where you are going is to see if you are coming from a bar or place where alcohol is served.  The reason they ask you how much you had to drink and when you last ate is because they know prosecutors need this information to prove your alcohol concentration at the time you were driving.  Even if you don’t take the breath test, they will still come to court and say, “She told me she was coming from Joe’s Brewhaus and had drank a couple of beers.”  Even though that may be factual and LEGAL behavior on your part, the State is going to use that testimony as the cornerstone of its case against you.

If the police have a reason for stopping you, they should be able to tell you without any help from you.  My favorite type of police deception is the officer asking you to step out of the car to perform a few tests to see if you are ok to drive.  I learned many skills in driver’s education that help me operate a motor vehicle.  None of those skills involved walking a straight line or holding up one leg and counting.  The truth is unless you are weaving all over the road, aka “A Drunk Car”, the only real evidence the police have of intoxication is developed after the traffic stop.

As I pointed out earlier, none of the “tests” they are going to administer has anything to do with driving a car.  In fact, all three of the standardized field sobriety tests, (the nine-step walk and turn, the one-leg stand, and the horizontal gaze nystagmus test) have come under harsh criticism because of the number of “false positives” they produce.  (In a future article I will discuss all the problems associated with the standardized field sobriety tests and why they don’t do what police officers believe they do.)  These tests are remnants from old ways of thinking and beliefs that have either been disproved or are in the process of being disproved.

I have a really good friend that is a doctor.  When people ask him if it is ok to take a certain drug or what they should do about their health, they always do what he says without question.  If he says, “Don’t drink diet drinks,” they quit drinking them.  If he says grape juice has been shown to promote good overall health, they stock up.  But when I tell the same people, “Get a designated driver,” or “Don’t talk to the police,” or “Never take the breath test,” they shrug off my advice and go their merry way.  Only later do I hear them say, “I really should have listened to you.”

We all like to think that getting stopped after drinking only happens to other people.  Well, tomorrow you may just be one of the “other people.”  When that time comes, you don’t want to be the guy without a plan.  For those of you who want a plan for when that time comes, here it is: Keep your car registered, inspected, and in good working order. Be prepared by having your license and insurance handy. Be polite and be quiet; identify yourself and then shut up. Finally, never take any test.  I know it sound hard, but it is easier than giving up diet drinks or drinking gallons of grape juice.

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