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"What's all this about a breath test?"

You and your wife are driving home after celeberating your wedding aniversary in eager anticipation of an evening of wedded bliss. While you are driving you put your arm around her affectionately and she responds by moving closer and putting her head on you shoulder, or if your lucky, in your lap. It's almost 11:00 p.m. and there is not much traffic. Your car moves across a lane divider as you are momentairly distracted and red lights appear in your rear view mirror. This minor infraction would have probably attracted no attention earlier in the evening but now, with less cars on the road, its enough for an officer to investigate further. You know your threshold for alcohol tolerance but none-the-less you did have three glasses of wine with your excellent dinner of grilled salmon stuffed with wild mushrooms and mussels. Expresso followed with your dessert and you feel mellow and in control. After the usual preliminaries of questions and road side sobriety tests, you are asked to submit a specimen of your breath for analysis by the infamous Intoxilyzer 5000 -- now standard throughout Texas. You are required to blow long and hard into a tube protruding from the machine until a tone sounds or you pass out, which ever comes first. What are your options and what do you do?

One definition of intoxication, for the purposes of dwi, is having an alcohol concentration of 0.08 or more per 210 milliliters of breath as measured by the Intoxilyzer 5000. Sec. 49.01 (1)(A) Texas Penal Code. But it's not the alcohol in your breath which makes you intoxicated. No one inhales a beer -- they drink it. When its consumed in this fashion it enters the blood stream, circulates through the body, metabolizes and finally, if too much is consumed, muddles the mind. Its the alcohol in your brain which causes intoxication. Thank goodness they don't ask for a sample of brain tissue. In any event it is presumed that the alcohol which circulates through your lungs to be purged from your body can be accurately measured by this device. It is further presumed that this measurement accurately reflects the amount of mind muddling alcohol in your brain. A leap across the Grand Canyon is more plausible. Since the Intoxilyzer 5000 is sanctioned by the scientific director of the Department of Public Safety's alcohol testing program, a certain bias is self evident. This is shamelessly demonstrated by the reverse scenario. If you pass the test, this is not neceassarily going to keep you from being charged with dwi. Why? If, in the arresting officer's opinion, you do not have "the normal use of (your) mental or physical faculties by reason of the introduction of alcohol..." you are driving while intoxicated. The sole purpose of this machine is to convict you of dwi.

What horrors await you should you refuse the officer's demand that you meekly submit to analysis by a machine designed to convict you? You will be arrested and this is an uncomfortable experience -- but you probably will be arrested anyway. I am reminded of a client who submitted a breath sample which was analyzed by this machine. She scored 0.096, 0.094 and 0.097 -- all below the magacial 0.10. She couldn't take another test because hyperventilation was beginning to set in. Obviously, with all these tests the officer was dumbfounded that the machine failed in its designed purpose. She remained in jail for 12 hours before being arraigned and released on bond. Later the charge was dismissed. (Note: The law has been amended since this incident occured. Effective January 1, 2000 intoxication for driving purposes as measured by the Intoxilizer 5000 is .08 alcohol concentration per 210 milliliters of breath. )

The remaining horrors are not nearly so bad. If you refuse to submit a specimen of breath and possess a valid Texas Driver's License, it will be suspended for 90 days. If you submit a specimen of your breath and fail the test, the suspension is for 60 days. If you pass the test you keep your license and still may remain in jail. Ever mindful of the need to be fair, the legislature has provided for a hearing on whether your license should be suspended. But, you are rarely informed of this. If you read the fine print on your notice of suspension, you will learn that you have 15 days to request a hearing before an Administrative Law Judge. But this is of little value. The rules of evidence are rewritten solely for the purposes of these hearings and again are stacked against you. So you probably will not prevail here. The only purpose of the hearing is to deterimine if in the OPINION of the arresting officer you were driving while intoxicated. Further, his presence is not required. Only his arrest report need testify and it is difficult to cross examine a piece of paper when all it says is "In my opinion the subject was intoxicated." So you are going to lose your license... but it's not the end of your driving world.

Occupational Licenses may be obtained which will allow you to drive to work or to school, so even the mandatory loss of a license is not much of a disadvantage. You will be permitted to drive for no more than 12 hours per day for 6 days per week and for 4 hours per day for the remaining day. The hours you drive need not be consecutive and can be spread out over the entire 24 hours. The days may be any days you choose. The routes you travel must be specified, but this can be done in the most general of terms to accommodate you for the short period of suspension. In short, there is no advantage to taking this test when it is demanded of you. You may refuse the test, no matter what the officer says to the contrary, and suffer little consequence. Remember, it is easier to be acquitted of dwi if test scores are not available as evidence against you. Remember further, if you are acquitted your driver's license suspension is overturned and your license reinstated.... though this may be small comfort after the expense you have endured and in all probability will not occur before you have already served your suspension.

Q. For how many hours will the device be able to pick up evidence after an arrest. Or, how long does alchol remain in your bloodstream? I know of a situation where the suspect wasn't given the test for, get this, 12 hours, but the police still claimed the results were accurate. Please advise A. How long alchol remains in the blood stream is the function of individual metabolic rates. The stated "average" is the body will metabolize one ounce of alchol per hour. But other factors must be considered. The gender, weight, age, food consumed, when food was last consumed, how much food consumed and others which do not occur to me at this moment. The fact is not everyone has the same metabolic rate and breathalayer treats everyone equally. Mike

Mike McNamara has been representing Island drunks and other assorted miscreants for more years than he cares to remember. If you have a general question of a legal nature, you can e-mail him and - if you ask real nice - you might even get a personal reply.