Did You or Did You Not Take a Breath Test?

Stephen H.: Hello. I’m Stephen Hamilton, board certified criminal defense attorney. I practice in Lubbock, Texas, in the South Plains. And, today’s DWI video clip is, did you or did you not take a breath test?

Stephen H.: When you’re out on the field when the officer stopped you, gave you some field sobriety test, oftentimes, they will ask you to take what is called a portable breath test. Think about it as a scanning device. It’s not admissible in a criminal case, but it’s helping the officer determine if you’ve had anything to drink.

Stephen H.: And, sometimes, what I’ll have is a client who will say, “When I went down to the station, they asked me to take another breath test, and I didn’t do it because I’ve already taken a breath test.” What that does is basically subject you to the refusal law because the only result that matters in a criminal case is the Intoxilyzer 5000, the big breath test machine down at the station. If you don’t take that, then the state is going to say that you refused to take the test. So, taking the portable breath test out at the field doesn’t do anything as far as whether or not the state is going to classify it as a breath test case or a refusal case.

Stephen H.: That’s it for today’s video tip. My name is Stephen Hamilton. Come in, talk with me about breath testing, whether you really gave a breath test or you didn’t, whether it was a refusal, a portable breath test, or the Intoxilyzer 5000. My office number is 806-794-0394. I hope you have a great rest of the day.

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