4th Texas DWI Offense with Breath Test

Fourth DWI Is a Serious Charge

Make no mistake: a fourth DWI is a serious charge. While Texas law makes a first or second DWI offense a misdemeanor, an enhanced-penalties statute Texas Penal Code 49.09 turns a third or fourth offense into a felony. A Texas felony carries a significantly greater penalty than a misdemeanor. A third-degree felony subjects the DWI offender to a prison term of two to ten years plus a fine of up to $10,000, as Texas Penal Code 12.34 provides.

The penalties for a fourth DWI charge could be even more significant. If the fourth-DWI offender already suffered a third-degree felony DWI conviction, then the offender faces the risk of even longer imprisonment. A repeat-offender statute Texas Penal Code 12.42 could raise a felony conviction from third degree to second degree if the defendant had a prior third-degree conviction. Thus, a fourth DWI offense qualifying the defendant as a repeat offender could, if prosecutors pursue it and the court imposes it, result in a second-degree felony, punishable under Texas Penal Code 12.33 with up to twenty, not just ten, years of imprisonment.

Even after release from incarceration, a fourth-DWI offender faces probation with up to 600 hours of community service. A fourth DWI offense also carries administrative sanctions, including mandatory two-year license suspension with a $2,000-per-year surcharge. If the fourth offender manages to obtain a hardship license to drive to and from work, the offender pays additional costs for an ignition interlock device. A fourth DWI offense could also bring daunting collateral consequences, including loss of employment, career, occupational license, and stress on family relationships.

If you only have so many strikes before you face a felony charge, then don't waste even a first strike. The seriousness of third-DWI and fourth-DWI charges warrants hiring the best available legal counsel to defend any DWI charge. As a Board Certified DWI Specialist and nationally recognized DWI lecturer, Texas DWI criminal-defense attorney Doug Murphy has the detailed knowledge and strong advocacy skills to challenge DWI evidence. Doug also has the premier reputation and sound professional relationships to earn the respect of those who offer pleas or pursue, abandon, or dismiss charges.

Breath-Test-Based DWI Charges

For purposes of a fourth-offense DWI or lesser DWI charges, Texas Penal Code 49.01 defines unlawful “intoxication” in two alternative ways, as either:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B) having an alcohol concentration of 0.08 or more.

The .08% alcohol concentration to which Penal Code 49.01 refers is blood, not breath, alcohol. Yet Texas law generally permits officers to gather evidence for a DWI charge from either blood testing or breath tests. Texas law does not require prosecutors to prove an unlawful blood-alcohol level of .08% or higher, using only a blood draw. They may instead use a breathalyzer device like the Intoxilyzer 9000, popular among Harris County police officers. Breath-test results can be enough evidence to support a DWI conviction.

Of course, an officer must first have probable cause to believe that the vehicle operator may have an unlawful blood-alcohol level before administering any alcohol-level test, including a breath test. Officers usually assert probable cause in things like moving violations or other erratic vehicle operation, the smell of alcohol on the operator's breath, slurred speech, and other roadside sobriety tests. But the absence of probable cause for testing can be a first ground on which to challenge the admissibility of breath-test results.

You need not necessarily consent to an officer's request for a breath test. A 2014 Texas Supreme Court decision held unconstitutional the state's implied-consent statute. But if you do refuse a request for which the officer had probable cause, then you face automatic license suspension unless you promptly request a hearing to challenge the suspension. You may also suffer a DWI conviction on other evidence. Read here for more detail about whether you should consent to an officer's request for a breathalyzer test.

A Breath-Test-Based Fourth DWI Charge Is Not a Conviction

Breath tests create other unique problems on which to challenge a charge. Breath tests are simply not as reliable as blood tests in recording accurate blood-alcohol levels. You can imagine why. Rather than measuring blood levels directly, breath tests depend on machine reading of airborne alcohol in the suspect's breath. How the officer administers a breath test, including how the officer and suspect use the breathalyzer and the condition of the breathalyzer itself, can affect test results.

A complex calculation must then convert the breath-alcohol reading to a blood-alcohol reading. After all, the law bases DWI offenses on blood-alcohol levels, not breath-alcohol levels. All these circumstances make breath tests inherently unreliable. Indeed, breathalyzer results are often inaccurate. One 2019 media report indicates that two states, Massachusetts and New Jersey, threw out 30,000 breath tests in the prior year, while states across the country have invalidated thousands of other tests. Breath-test inaccuracies may be due to any number of reasons including:

  • inadequate or improper police training;
  • improper test administration;
  • shallow rather than deep breath;
  • other breathing patterns;
  • trace alcohol retained in the mouth;
  • other poor sample quality;
  • improper breathalyzer storage;
  • inadequate breathalyzer maintenance;
  • prescription medication within the suspect's system;
  • other medical conditions of the suspect.

When Facing a Breath-Test-Based DWI, Get the Best Help

For these reasons, DWI charges based on breath-test evidence present special opportunities for an aggressive defense when your legal counsel knows the applicable law, science, and medicine. Effective advocacy can lead to the dismissal of a fourth-DWI charge when police lacked probable cause to stop the suspect operator's vehicle in the first place. Police also mistakenly charge operators who were not in fact intoxicated or passengers who were not in fact operating the vehicle. Police also coerce breath tests from operators who showed no probable cause for police to believe the operator was intoxicated. Police also routinely administer field sobriety tests, including breathalyzer tests, incorrectly, producing inaccurate, unreliable, and false results.

These issues open ripe opportunities for the skilled advocacy of 2021 Houston DWI Lawyer of the Year Doug Murphy, one of only two Texas lawyers holding both a DWI Specialist Board Certification and Criminal Law Board Certification. Don't give up on a defense before you have had evaluation and counsel from the best. Contact Doug Murphy Law Firm online or at (713) 229-8333 to discuss your case now. When the matter is that important to you, trust Texas DWI attorney Doug Murphy with your defense. Doug knows how to challenge breath tests to the best effect.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.