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Breath Tests

San Antonio Breath Test Lawyer

After an arrest for DWI, the arresting officer will often request that the driver submits to a breath test to determine its alcohol content. The prosecutor will then attempt to use that breath test reading at trial in order to prove that the defendant is guilty of DWI.

In many DWI breath test cases, the defense will raise an issue of fact concerning compliance with the DPS rules for taking a breath specimen. In those cases, the court should instruct the jury on the issue, if requested, pursuant to the exclusion rule in CCP 38.23. See Atkinson v. State, 923 S.W.2d 21 (Tex.Crim.App. 1996). The current regulations for breath testing are found at 37 Tex. Admin. Code §19.4(c).

In a breath test case, the criminal defense attorney will often file motions to show the court that the breath test machine or the testing method used did not comply with DPS rules. Even if the court does not suppress or exclude the breath test reading before trial, the criminal defense attorney can request a special jury instruction on the issue of compliance with rules for taking a breath specimen.

Attorney For The DWI Breath Test In Bexar County, TX

If you were arrested for DWI and submitted to a breath test with a reading over .08, then contact an experienced criminal defense attorney at Flanary Law Firm, PLLC. Don Flanary is experienced fighting the DWI cases in San Antonio and Bexar County, TX.

Whether you are charged with a first DWI offense or a more serious offense for a second or subsequent conviction, Don Flanary can help. He also represents clients charged with felony DWI-related offenses such as intoxication assault and intoxication manslaughter.

Call  (210) 899-7566  today for a free consultation.

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Admissibility Of The Breath Test Results At Trial

Section 724.016 sets out the statutory predicate for admissibility of breath tests in Texas. Under this statute, a breath test must comply with § 724.016 before it is admissible.

Texas law provides that a breath test that was not “taken and analyzed under the rules of the department” and that violated the rules of the department is not admissible at trial. See Harrell v. State, 725 S.W.2d 208 (Tex. Crim. App. 1986); Davis v. State, 949 S.W.2d 28 (Tex. App.—San Antonio 1997, no pet.); Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996).

Tex. Trans. Code § 724.016 provides:

(a) A breath specimen taken at the request or order of a peace officer must be taken and analyzed under rules of the department by an individual possessing a certificate issued by the department certifying that the individual is qualified to per­form the analysis.

(b) The department may:

(1) Adopt rules approving satisfactory analytical methods.

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Why Choose Flanary Law Firm, PLLC?

  • Constant Communication
    At our firm, we always want our clients to feel empowered when defending against criminal charges. We aim to constantly communicate with our clients, answering questions and taking feedback as we progress through the case. We are always here to answer your questions or adjust your legal strategy as needed.
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    With multiple decades of experience between our attorneys, we have a history of proven results and happy clients. We always aim to get a criminal case dismissed or have the charges lowered to reduce any penalties our clients are facing. We are confident we can get you the results you deserve.
  • Experience You Can Count On
    At our firm, we pride ourselves on the diverse range of criminal cases we have worked on. From federal felony charges to state misdemeanors, we know exactly how to build a defense strategy that's right for you. Our team can handle even the most complex cases and are willing to be flexible with our strategies.
  • Advice on Your Timeline
    We understand that all criminal cases work at different paces. Whether you are just looking around for a lawyer because you're under investigation or you need immediate representation, our team can help. We will work with you no matter where you are in the process to protect your rights.
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    We understand that hiring a criminal defense attorney is a big decision that many people need time to make. That's why we offer all our potential clients a free consultation to see if we're the right legal team for them. We will review your case and begin building a legal strategy to defend your rights.
  • Personalized Legal Defense Strategies
    All criminal cases are different, so our dense strategies are too. We would never re-use a legal strategy from one client to the next because your case is too unique. We will always build a defense strategy that's personalized and effective for you to get the outcome you deserve.

Compliance With Rules For The DWI Breath Test

If the state seeks to introduce the defendants breath test results from a breath specimen taken after a DWI arrest, the defendant can show a lack of compliance with the rules and regulations required for such testing.

Upon request, the jury will be instructed that before it may consider the results of any test of a specimen of the defendants breath, the jury must find beyond a reasonable doubt that the regulations of the Texas Department of Public Safety were complied with in administering the test. The jury might then be told about each of the regulation of the Texas Department of Public Safety including:

  • A period during which an operator is required to remain in the presence of the subject – an operator shall remain in the presence of the subject (although direct observation is not required to ensure the validity or accuracy of the test result) at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth
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