Whether it is smart to refuse a breathalyzer test will ultimately rest on the prosecution involved in your case. While many people think that refusing a breathalyzer limits the evidence against them, it can also be used by the prosecution to establish probable cause. They can argue that because you refused to take a breathalyzer test, you were likely drunk at the time of your arrest and did not want the attending police officer to know that.

You are required to submit to a breathalyzer test under Texas’s Transportation Code, which contains the state’s implied consent laws. If you do not, according to the Texas Department of Transportation (TxDOT), your license will automatically be suspended for 180 days. To regain your driving privileges, you would have to request license reinstatement through the Administrative License Revocation (ALR) process, even if you were not driving while under the influence.

The ALR Process

Some people would argue that it is not smart to refuse a breathalyzer test because of the implications it has on license suspension. If you refused a breathalyzer test and your license was suspended, you may want to consider moving through the ALR process to get your privileges reinstated.

According to the Texas Department of Public Safety, after refusing to take a breathalyzer test, the following will happen in your situation:

• The attending law enforcement official will take your license and issue you a temporary driving permit, along with a suspension notice.
• You will have 15 days from the date you were issued the suspension notice to request a hearing to get your license back. If you do not request a hearing within 40 days, the suspension will go into effect.
• You will be issued a date to contest your license suspension, which can be up to 120 days from the date you requested the hearing.
• You will have the opportunity to explain yourself to an Administrative Law Judge (ALJ) who will determine whether or not the suspension should remain in effect.

During this process, many people choose to work with a lawyer who can guide them through the ALR proceedings. An ALR hearing has no bearing on the criminal charges against you. Just because an ALJ gives you your license back does not mean the driving while intoxicated (DWI) charges against you will be reduced or dismissed.

Consequences of a DWI Conviction

If you refused a breathalyzer test, there are likely pending DWI charges against you. In that situation, you may want to work with a criminal defense lawyer who can take measures to secure your future and wellbeing. They can examine the evidence against you to determine whether the prosecution has a case against you.

If this is your first time facing a DWI charge, according to TxDOT, you could be facing:

• A fine no more than $2,000
• Three to 180 days in jail
• The loss of your license for up to two years

According to the Texas Penal Code, a DWI charge is usually classified as a Class B misdemeanor. However, if your blood alcohol concentration (BAC) level is higher than .15% at the time of your arrest, the charges against you could elevate to a Class A misdemeanor.

If you were driving while under the influence of alcohol and caused an accident, the penalties only increase in severity. Not only could you be facing a felony charge, but your record can never be sealed, meaning that your conviction could come up on a background check.

How a Criminal Defense Lawyer Can Help You

After learning the details of your situation, a criminal defense lawyer can let you know whether refusing a breathalyzer test was a smart decision in your case. Your legal team’s goal will be to have the charges against you reduced or dismissed based on the details of your situation. If the charges against you are reduced, your pending DWI charge could be changed into a lesser offense, like reckless driving. However, if the charges against you are dismissed, that means you will not face any legal penalties.

A criminal defense lawyer can:

• Review the evidence in your case
• Investigate the charges against you
• Look over your criminal record for previous DWI-related incidents
• Represent you in court
• Defend your case against the prosecution
• Help you through the ALR process
• Serve as your legal advocate

While you have the right to serve as your own legal counsel, this duty may not appeal to you. Building a successful defense takes time and insight. You do not have to take any liberties with your future when there is help available.

Seek Criminal Defense Help Today

At the Law Offices of Randall B. Isenberg, we provide legal assistance to those who are facing DWI charges. Whether you refused a breathalyzer test or not, our legal team can take measures to help protect your future and wellbeing. A conviction on your criminal record can impact your life in many ways, limiting both your employment and residential opportunities. To start protecting your future, call us today at (214) 696-9253.

Call or text or complete a Free Case Evaluation form

(214) 696-9253

If you are pulled over on suspicion of drunk driving, you do not get to choose whether your intoxication level is measured by a blood test instead of a breathalyzer. Generally, it is up to the attending law enforcement official to determine whether a blood or breath test would best assess your situation. Additionally, under Texas’s Transportation Code, you are required to take a blood test or breathalyzer in the event that you are pulled over. According to the Texas Department of Transportation (TxDOT), if you refuse, your license will be automatically suspended for 180 days. In that situation, per the Texas Department of Public Safety (DPS), it could take 120 days to schedule a hearing date for license reinstatement.

Texas views driving as a privilege, not a right. You usually cannot request a blood test instead of a breathalyzer. If you are facing charges of driving while intoxicated (DWI), you may want to work with a criminal defense lawyer.

What a Breathalyzer Tests

A breathalyzer is an analytics tool that measures the alcohol on your breath to determine your level of intoxication, according to the National Institutes of Health (NIH). When you drink alcohol, after it is absorbed by the stomach, oxygenated blood carrying alcohol circulates throughout the body. Eventually, it reaches the lungs, and alcohol is exhaled through a person’s breath. In Texas, according to TxDOT, you are legally intoxicated when your blood alcohol concentration (BAC) level reaches .08%. Your BAC level rests on many factors, including your gender, weight, and when you last drank alcohol.

A breathalyzer test can be conducted and reviewed the same night of a person’s arrest. However, according to Alcolizer Technology, these tests can yield inaccurate information.

Some elements that can impact a breathalyzer’s accuracy include:

• Cold medications, mouthwash, and allergy pills
• Medical conditions, like diabetes and hypoglycemia
• Certain types of food
• Vinegar containing wine
• Alcohol from a beverage lodged in the lining of someone’s mouth

When you work with a criminal defense lawyer, they can examine the circumstances of your breathalyzer test to determine if it was accurate. Additionally, they can review how the police officer performed the test to make sure that it was properly administered. These are both elements that could factor into your defense strategy.

What a Blood Test Measures

According to Medline Plus, a blood test measures the level of alcohol in your blood. The results of a blood test are not immediate and must be performed in a safe, sterile environment. When you drink alcohol, as we mentioned before, it eventually makes it into your bloodstream, circulating to different parts of the body. If your liver is not able to process alcohol at the rate you are drinking it, you will become intoxicated. From there, a blood test can be used to measure how much alcohol is in your system.

Per the Texas Department of Public Safety, after you are administered a blood test, you usually get to keep your license until the department notifies law enforcement of your results. If your BAC level was higher than .08%, you can be charged with a DWI, which is a Class B misdemeanor. However, if your BAC level was .15% or higher, you could be charged with a Class A misdemeanor.

While you cannot request a blood test instead of a breathalyzer, if you believe that the results of your test were inaccurate, this allegation could be used as part of your defense strategy.

Law Enforcement Must Disclose Certain Information

Under Texas’s Transportation Code, before undergoing any testing, the attending police officer is legally required to share certain pieces of information with you. This is so you understand your legal rights if you refuse to take a test.

The police officer must tell you:

• If you refuse to take a test, that refusal could be used against you in a court of law.
• If you refuse to take a test, your license will be suspended for at least 180 days, whether charges against you are pressed or not.
• If you refuse to take a test, the officer could apply a warrant that requires you to take one.
• If you take a test, are over the age of 21, and your BAC level is higher than .08%, your license could be suspended for at least 90 days, whether or not you have charges pressed against you.
• If you take a test, are under 21, and any amount of alcohol comes up, your license will be suspended for at least 60 days. However, if your BAC level was less than the legal amount, the criminal penalties could be less severe.
• If you do not have a state driver’s license, various penalties against you could apply.
• You have the right to request a hearing to get your license back within 15 days of receiving a notice of suspension.

If you made decisions without the police officer disclosing certain pieces of information, your criminal defense team could argue that because you did not know your legal rights, certain evidence in your case should not be admissible.

Get Legal Help Today

At the Law Offices of Randall B. Isenberg, we strive to protect the rights of those going through the legal system. If you are facing DWI charges, you do not have to serve as your own legal advocate. Our team can address any questions or concerns you have about the criminal defense system, including whether you can request a blood test instead of a breathalyzer. To get started, call us today at (214) 696-9253.

Call or text or complete a Free Case Evaluation form

(214) 696-9253

Some foods can set off a breathalyzer. The Texas Department of Public Safety (DPS) states that “The type of food may affect the absorption rate, but the amount of food is the most significant factor.” The alcohol content in some foods is not enough to impair your judgment or to make you drunk (only to put just enough alcohol on your breath for you to receive a false reading).

Non-alcoholic beverages can also produce false results. This is because they contain small traces of alcohol. For example, mouthwashes and medicines like asthma medication, oral gels, over the counter medications, and breath sprays may have alcoholic ingredients that could procure an inaccurate reading.

Another reason why certain foods can set off a breathalyzer is because of fermentation. Some sugary foods can turn into alcohol. For instance, fruit that has undergone the fermentation process can easily set off the breathalyzer.

Additionally, the yeast used in bread and cakes contains a residual amount of alcohol. It is impossible to remove the alcohol in the baking process. Therefore eating cakes and bread can set off the breathalyzer by a small percentage.

Keeping Track of Foods You Consume

It is important for you to keep track of what you are eating to prevent setting off a breathalyzer. It is especially crucial for people with previous DWI charges because a simple mistake can result in a subsequent arrest and jail time.

The National Conference of State Legislatures states that it is required that subsequent DWI offenders install ignition interlock devices on all of the motor vehicles they own for the period of license suspension they must undergo. You can get arrested if the device goes off, and that could mean an extended license suspension period.

Other Reasons a Breathalyzer Result Could Go Wrong

Foods can set off a breathalyzer test, but so can other things, like:

• The waiting period
• Using certain medications
• Using certain products
• Work environment
• Health conditions

Regarding the waiting period, police should wait for a few minutes before conducting the test for a second time after the initial test. The Texas Breath Alcohol Program Operator Manual mandates that an officer conducting a DWI charge to wait at least 15 minutes after the first failed test. After that, the police can test again to verify BAC. The purpose of the waiting period is to ensure that there is no residual alcohol present in a driver’s mouth.

External Factors Can Cause a Failed Breathalyzer

Just because you fail a breathalyzer, does not mean that you ingested a substance, food, or drink that affected your BAC. There may be something out of your control that caused the reading.

Health Conditions Can Cause a Failed Breathalyzer

Certain health conditions could also set off a breathalyzer test, like:

• Diabetes
• Heart disease
• Heartburn
• Fever
• Liver disease
• Gum disease
• Acid reflux

Many people who have acid reflux have a defective valve that allows alcohol liquids and gases to travel from the stomach and enter the mouth. For that reason, when the police administer the test, they may get a false reading that does not match your true BAC reading. A Dallas DWI lawyer can highlight any medical reasons behind your test results as part of your defense.

The working environment of a driver can also cause a breathalyzer test to go wrong. For example, if you work in an environment that exposes you to volatile substances such as paint removers and cleaning fluids, that can affect the BAC readings. Lastly, some personal care products can affect the breath alcohol reading. For example, some facial cleansers and aftershave products contain some alcohol content that may interfere with the correct reading.

Protect Your Opportunity to Challenge the Breathalyzer Results

After getting a DWI stop, ensure you secure every opportunity to challenge the breathalyzer result. You can do the following:

• Obey physical commands such as to step out of your vehicle
• Provide the vehicle registration
• Produce your driver’s license
• Provide your true name, address, and date of birth
• Provide proof of insurance
• Submit to all the field sobriety tests

You are under no obligation to answer self-incriminating questions. If the officer asks whether you are from drinking, you should be honest. Call your lawyer as soon as possible. Remember to mention all the foods and drinks that you took to help him or her prove that you were not driving while intoxicated.

Click to contact our attorneys today

(214) 696-9253

Ask for Legal Help From the Law Offices of Randall B. Isenberg

A DWI case can threaten your credibility as a driver. You can lose your license for an extended period. However, you can get a DWI charge even when you were not completely impaired. Certain foods can alter the BAC reading resulting in a charge that may harm your good record.

You have a right to retain a lawyer to help explain your case in court. If you are facing DWI charges, contact the Law Offices of Randall B. Isenberg today at (214) 696-9253 for a free consultation. Let us help you prove your case by challenging the accuracy of the breathalyzer test.

Call or text or complete a Free Case Evaluation form

(214) 696-9253