In Texas, driving is considered a privilege, not a right. Under the state’s implied consent laws, you consent to take a blood or breath DUI test if a police officer has probable cause that you operated a vehicle while intoxicated. The arresting officer has the discretion to decide whether a breath or blood test should be administered.
What is a Breath Test?
During a breath test, the driver blows a breath sample into a tube attached to a machine (often called a “breathalyzer”). The device measures the amount of alcohol in the individual’s breath and estimates blood alcohol content (“BAC”). Because the machine is measuring the breath, it is an indirect measurement of BAC.
What is a Blood Test?
For a blood test, the phlebotomist takes a blood draw. The individual’s BAC is measured directly from the sample. Most people find a blood test more invasive than a breath test. In Texas, you have the right to have a blood test taken by an independent medical professional at your own expense within two hours of your DWI arrest.
How Do you Challenge a Breath Test in Fort Bend?
The challenges that your attorney raises will depend on the unique facts of your case. The three primary ways that you can challenge a breath test in a Fort Bend DWI case are:
- The machine was not properly calibrated. Breathalyzers are sensitive machines that must be properly maintained and serviced regularly. An improperly calibrated machine will give an inaccurate reading.
- The person administering the test was not properly trained. There are specific protocols that must be followed during the administration of a breath test. Law enforcement officers who administer breath tests must be certified and trained in these protocols.
- Your medical conditions or food that you consumed caused an inaccurate measurement. Yeast bread, very ripe fruit and energy drinks are all food that could alter the results of a breath test. Likewise, if you suffer from diabetes, asthma, or acid reflux, the test results could be inaccurate.
How Do you Challenge a Blood DUI Test in Fort Bend?
Although blood tests are thought of as more accurate than breath tests because it is a direct measurement, there are various ways that an experienced attorney can challenge the validity of blood test results. Among the challenges that can be raised include:
- The timing of the test made it inaccurate. Sometimes a blood test can occur hours after the police pulled you over. This time-lapse causes inaccuracies because a person’s BAC changes as time passes and your body metabolizes the alcohol in your system. If the alcohol you consumed had not entered your bloodstream at the time of your arrest, the BAC reading could be inflated.
- There were errors in the collection. If the technicians used the wrong tools or procedures, the validity of the blood test can be challenged. For example, if the machine is not thoroughly cleaned between tests, the sample could have been contaminated.
- There were errors in storage. The blood sample must be properly stored at the correct temperature. Certain chemicals are added to prevent the sample from fermenting. If the sample is not correctly stored and fermentation occurs, it can cause a false positive.
- There were issues with the chain of custody. Multiple people handle a blood sample through the testing process. The state is required to have a record of every person that touched the sample. If the state cannot account for the sample for any amount of time, there is a chance that it could have been mixed or contaminated.
What Happens if I Refuse a Blood or Breath DUI Test in Fort Bend?
Before your arrest, you can legally refuse to submit to BAC testing. The implied consent law kicks in after you are lawfully arrested for a DWI. After you are arrested, you can withdraw consent, but there are legal consequences. Your driver’s license can be suspended for a minimum of 180 days. The suspension is increased to two years if you had any “alcohol or drug-related enforcement actions” within the last ten years. This includes DWI or drug-related convictions, BAC test refusals, and failed BAC tests. In addition, your refusal can be used against you as evidence of guilt.
Under some circumstances, BAC is mandatory, such as if there was an accident involving serious injury or death. Furthermore, law enforcement can ask the judge for a warrant to provide a blood sample for testing.
Your Sugar Land Criminal Defense Attorney
If you or a loved one is facing DWI/DUI charges, you should reach out to a qualified Sugar Land criminal defense attorney as soon as possible. Adam Capetillo is a Fort Bend County native who will protect your rights and provide a skilled and aggressive defense. Call Capetillo Law Firm today for a free consultation.
