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In many DWI blood 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 can be found at 37 Tex. Admin. Code §19.4(c).
To be admissible, a breath test cannot violate and must comply with the requirements of the Texas Administrative Code. The Texas Administrative Code in Title 37 for Public Safety and Corrections in Part 1 concerning the Texas Department of Public Safety sets out the breath alcohol testing regulations in Chapter 19.
Additionally, breath testing must also comply recently adopted formal written “Standard Operating Guidelines” (SOG) for technical supervisors to follow in the operation of some aspects of the breath test program. Under 37 TAC § 19.4(f), the administrative regulations provide that approval of breath alcohol testing programs is contingent on each program agreeing “to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.”
Under current Texas law, the recently enacted SOGs, as well as other rules and directives of the department, govern the administration of breath alcohol tests in Texas.
If you were subjected to a breath test after a DWI arrest in San Antonio or Bexar County, TX, then contact an experienced criminal defense attorney at Flanary Law Firm, PLLC. Don Flanary is experienced in fighting DWI cases involving a breath test, blood test, urine test, or refusal to submit to testing.
Call (210) 738-8383 today to discuss the unique facts of your case after an arrest for DWI involving a breath test in San Antonio, TX.
The regulations for breath alcohol testing can be found in Subchapter A in Rule §19.3 which governs the required techniques and methods. The provisions of Rule §19.3 were adopted to be effective on January 12, 2015. Section 19.3 provides:
(a) All breath alcohol testing techniques and methods shall meet, but not be limited to, the requirements as detailed in this subsection:
(1) a period during which an operator is required to remain in the presence of the subject. An operator shall remain in the continuous presence of the subject at least 15 minutes immediately before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth. Direct observation is not necessary to ensure the accuracy of the test result;
(2) the breath alcohol testing instrument must be operated by a certified operator or technical supervisor and only certified personnel will have access to the instrument;
(3) a reference system used in conjunction with subject analysis, the results of which must agree with the nominal value within plus or minus 0.01g/210 L, or such limits as set by the scientific director;
(4) all analytical results shall be expressed in grams of alcohol per 210 liters of breath (g/210 L);
(5) maintenance of any specified records designated by the scientific director;
(6) supervision of certified operators and testing techniques by a technical supervisor meeting the qualifications set forth in §19.5 of this title (relating to Technical Supervisor Certification);
(7) designation that the instrumentation will be used only:
(A) for testing subjects suspected of violating any statute or codified rule that defines intoxication in terms of alcohol concentration; and
(B) in compliance with §19.4(b), (c), and (e) of this title (relating to Operator Certification).
(b) The scientific director or a designated representative may at any time make an inspection of an evidential breath alcohol testing facility or technical supervisor laboratory to ensure compliance with this subchapter.
(c) Technical supervisors, when required, shall provide expert testimony by direct testimony or by affidavit concerning the approval of techniques and methods under their supervision.
DPS Rules for DWI Breath Test at Section 19.4 – Visit the Texas Secretary of State website to learn more about the DPS rules for breath testing found at 37 Tex. Admin. Code §19.4(c).
Breath Testing in Texas: A New Paradigm Standard Operating Guidelines – Visit the website for Voice for the Defense Online to learn more about the Texas breath alcohol testing programs and find its recently adopted formal written “Standard Operating Guidelines” (SOG) for technical supervisors to follow in the operation of some aspects of the breath test program. The lack of any written policies and guidelines has subjected the Texas alcohol testing program to criticism. The new administrative regulations provide that approval of breath alcohol testing programs is contingent on each program agreeing “to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.”
Standard Operating Guidelines for Evidential Breath Alcohol Instrument Calibration – Visit the Texas Breath Alcohol Testing Program, Office of the Scientific Directory to find the Directive from the Scientific Directory at OSD-CAL-O1, Version 6, effective on 06/01/2016. The SOGs describe the procedure for breath alcohol instrument calibration and the calculations used to establish the combined uncertainty. Any changes which occur as a result of the implementation of these guidelines apply only to calibrations which are completed on or after the effective date of this document.
