Second DWI with a Breath Test

Have you recently been arrested on suspicion of DWI with a breath test? Do you have a prior DWI conviction? The consequences of DWI become more severe with each additional infraction. Your history of driving while intoxicated will most certainly be used against you. You need the help of an experienced Houston criminal DWI attorney. Call the Doug Murphy Law Firm, P.C. today to schedule your free case evaluation.

Doug Murphy is one of the most renowned and well-respected criminal DWI attorneys in the state of Texas and the nation. If you are facing DWI charges you will want his expertise and high caliber defense to handle your criminal case. He knows that breath tests are unreliable and knows how to fight to invalidate any breath results that may be used against you. He understands how to simplify these complex cases and how they must be handled to secure the best possible outcome. Call today to learn about how Doug Murphy and his legal team can help to beat, or at least minimize the consequences of, your second DWI arrest.

Second DWI in Texas

It is illegal to operate a motor vehicle while intoxicated in the state of Texas. There are two ways you can be charged with DWI in Texas:

  1. Having a blood alcohol concentration (BAC) above the legal limit; or
  2. Lacking the “normal use of mental or physical faculties” because you have consumed drugs or alcohol.

Contrary to popular belief, you do not necessarily have to blow a .08 on a breathalyzer or fail a blood test to be arrested for driving while intoxicated in Texas. Police can make an arrest if there is probable cause to believe that you are intoxicated. However, police will do everything they can to get you to take a breathalyzer. You can still be charged with DWI even if you pass a breath test!

Breathalyzer Tests in Houston

Breath tests are the preferred method for determining if a driver is intoxicated. In Houston, police use the Intoxilyzer 9000. Here's how it works. Police administer the breath test back at the police station. They instruct you to take a very deep breath and blow into the device. The machine will analyze your breath and determine the concentration of alcohol in the sample.

This result is not your BAC. This is simply an estimate of how much alcohol is in your breath. Your BAC can only be obtained once this result is be converted using a complex formula and algorithm that even Texas DPS does not know how it works. When the test is performed properly, a breath test is still not an accurate estimate of the amount of alcohol in your body because the machine makes many assumptions about you that do not fit. In essence, the breath test is a one size fits all approach to an incredibly unique and complex human physiology of a living and breathing human being.

The Problem With Breathalyzers - Intoxilyzer 9000

Maintenance and Protocol Violations

Breathalyzers can be a good way for police to estimate how much alcohol you've consumed. However, in order for results to be accurate, the machines must be handled in a very particular way. Police have to ensure that breathalyzer devices are stored at a certain temperature, calibrated on a regular basis, and maintained properly. Most departments do not comply with the standard procedures that are required to ensure these breathalyzers work properly.

Police Lack Training and Knowledge

Another problem with breathalyzers is that they can be difficult to use. The person administering the test must be trained and understand how the device works. Even the smallest mistakes can alter breathalyzer results. Many police officers lack this fundamental training. Some received it so long ago and have forgotten the basics. Others simply aren't interested in those details of the job. If the test is not administered properly, the results cannot be trusted.

Results Easily Altered

Breath tests are vulnerable to outside influences. There are many factors that can easily throw off the validity of a test result. This is even more evident when police lack training and breathalyzer protocols are not followed.

Factors that can influence a breath test include:

  • Failing to Use a Proper Sample: Breath tests are most accurate when the machine is able to analyze a sample of your deep lung breath. Breath from deep within is a much better indicator of how much alcohol is in your system. Unfortunately, many police will rely on shallow breaths. These samples are much more likely to reflect a higher BAC. As a result, the results may not be a true indicator of your level of intoxication.
  • Trace Alcohol on the Breath: This goes hand-in-hand with the breath sample issue. If there is trace alcohol in your mouth or on your breath, the test result will probably not be accurate. Things like mouthwash or kombucha could even contribute to a false reading.
  • Prescription Medication: If you take prescription medications you may metabolize alcohol differently. This does not necessarily mean that it is unsafe for you to drive. The medication may amplify whatever your actual BAC is. Breath tests don't account for this.

You Have the Right to Refuse a Breath Test

Years ago, you would have had to comply if a police officer asked you to blow into a breathalyzer. Under the state's implied consent law, you would have no say in the matter. By driving, you automatically agreed to chemical testing. If you refused testing, that refusal could be used against you in court.

However, things are different in Texas today. The state's Supreme Court found that the implied consent law violated the Constitution. Now, you have the right to refuse chemical testing. The fact that you do not want to cooperate with police cannot automatically be used as evidence of your intoxication.

Things can get complicated if you refuse a breath test. If police have additional evidence to show that you were intoxicated, you may be convicted anyway. If this happens, you will automatically lose your license for six months.

Fighting a Breath Test in Houston

Just because you have been arrested for a second DWI does not mean that you will be convicted. This is true even if you have failed a breath test. There are many ways to defend Texas DWI charges. One strategy is to attack the validity of the breath test and any results.

Doug Murphy will thoroughly investigate the details of your alleged DWI. This will include a thorough analysis of department breathalyzer protocol, officer training, and the device itself. He will make note of any deviations from protocol or outside factors that could impact the results.

Arguments that can be used to invalidate breath test results include:

  • The device was not calibrated properly.
  • The device has been stored in a location that has damaged its ability to work properly.
  • Police officers lack sufficient training to administer the test.
  • The test did not use an appropriate sample of your breath.
  • The test did not use an adequate amount of your breath.
  • You had trace amounts of alcohol in your mouth that threw off the result.
  • You had consumed food, prescription medication, or other substances that have thrown off the result.     

Any attacks against the breathalyzer results can help your case. Remember, the State has to prove that you are guilty of driving while intoxicated beyond a reasonable doubt. Undermining the state's evidence can prevent them from building a strong case against you. Without this breath test evidence, they may be forced to drop the charges.

Penalties for a Second DWI in Houston

Your second DWI will carry much harsher penalties than your first DWI.

Administrative Penalties

If you are arrested for DWI within 10 years of a prior offense, the state can take certain administrative actions. This is true even if you are not subsequently convicted for this DWI.

License Suspension: The Texas Department of Public Safety will move to revoke your license when you are arrested for a second DWI. If you fail a breath or blood test, DPS will move to suspend your license for one year. If you refuse a breath or blood test, that suspension could be for two years.  A license suspension can potentially be avoided by taking the appropriate steps to save your driver's license.  A board certified DWI specialist knows how and what to do to give you the best chance of saving your driving privileges.

Ignition Interlock Device: The State will also require you to install an ignition interlock device on your car before you can drive again. This will prevent you from driving if you have any alcohol on your breath. Getting this installed in your car can be very expensive.

Occupational License: If your license is suspended after your second DWI you will find that it is hard to do things that you once took for granted. If you can prove that you need your license to get to work or take care of your family, the state may grant you a limited occupational license. You'll need the help of an attorney to get this.

Criminal Penalties

A second DWI is a Class A Misdemeanor in Texas. If you are convicted, your criminal sentence may include:

  • A minimum of 30 days in jail
  • A maximum of 12 months in jail
  • Up to $6,000 in fines
  • Probation
  • Substance abuse counseling
  • Community service, and
  • DWI education courses.

In addition to facing criminal charges for your DWI, you may also be vulnerable to civil lawsuits if you are in an accident. This can be financially devastating for you and your family.

Houston DWI Attorney

Have you been arrested for a second DWI in Texas? Did you fail a breath test? If you're convicted you may spend a year in jail, be subject to harsh fines, and lose your license for up to three years. Hiring an attorney to handle your criminal defense will help you avoid these (and other) consequences. Call the Doug Murphy Law Firm, P.C. today at 713-229-8333 to schedule your free consultation.

Contact Us Today

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.