Portable Breath Testing in the Field

Stephen: Hello, I’m Stephen Hamilton, board certified criminal defense attorney. I practice in Lubbock, Texas in the South Plains, and today’s video clip for DWI deals with the portable breath tester. Sometimes, I get clients who come in and you say, “I took a portable breath test out in the field.” In other words, “I gave a breath test to the officer while he was evaluating me in the field.” What is that? How does it work? Is it admissable in a court?

Stephen: And basically, in Texas, the only instrument that’s admissible as far as the breath test in court is what we call the Intoxilyzer 5000, that’s an evidentiary breath test machine. Typically, that is always done down at the station. That’s after you’ve been arrested and transported down to the station. There are a few counties that actually have what we call Batmobiles, where the machine, the Intoxilyzer 5000 is in a vehicle out in the field. But as of March of 2011, we don’t have any of those in Lubbock, Texas.

Stephen: So, what is a portable breath tester? Why does the officer use it out in the field? And today I have a portable breath tester with me. Basically, it’s a small handheld device. There are a couple of different brands that the various agencies will use, and think of it like this, it’s a screening device to tell the officer whether or not you’ve been consuming alcohol.

Stephen: The portable breath test is not admissible in a trial in the state of Texas, in a criminal case. It can be admissible in a driver’s license issue, but it’s not admissible in a criminal case. And one of the reasons that is because it’s really not that reliable. If you look at a typical portable breath tester, one of the things you’ll see is on the side, in this case, there’s a little set screw here, and so it can be manipulated, and I’m not here to tell you that the officer cheated on your test, but if I wanted to, I can put my screwdriver in here and I can turn it to a 0.08 I can have it set at above the legal limit before you even blow into it. So that’s one of the reasons it’s not admissible in a criminal case.

Stephen: The other issue is it’s not specific for what we call ethyl alcohol, and that’s consumed alcohol, okay? That’s what’s against the law in the state of Texas. There are many substances that’ll actually mimic alcohol. In fact, [inaudible 00:00:02:28], I can take this [inaudible 00:02:29], I can blow into it, I can take the portable breath test, and according to the results, I should be legally dead. About a 0.04. I’m not. I don’t have any alcohol in my system, but because [inaudible 00:02:42] has a chemical compound very consistent to alcohol, the officer thinks you’re intoxicated.

Stephen: Other problems with it. Observation periods. If you just had something to drink or you have something in your mouth and the officer doesn’t observe you for 15 minutes, then that can really affect the portable breath test. So that’s why some of the reasons that it’s not admissible in a trial. The officer will try to use it to say that he has probable cause to arrest you, but those are some of the issues we really want to sit down and visit with. And when you call me, then you come in, we’ll talk about it, we’ll show you the portable breath test, and we’ll see if the portable breath test was an issue in your case that we ought to be concerned about.

Stephen: That’s it for today’s video tip. My office number is (806) 794-0394 I’m Stephen Hamilton. I hope you have a great day.

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