Michalk, Beatty & Alcozer, L.P.


Blowing over the legal limit does not mean your case is sunk

Many people in Kileen, Texas, and the greater Fort Hood area, even those who have not been directly involved with the criminal justice system, are probably aware of the ritual when a Texas officer stops someone on suspicion of DUI/DWI.

Typically, after the stop, the officer conducts field sobriety tests and maybe does a portable breath test. After that, the officer will take the suspect to a police station so they can blow until a device designed to measure alcohol on one's breath. If that machine shows more than .08 blood alcohol content, the person is arrested for DUI and, at least in the minds of many, really should go ahead and plead guilty to the charge because the machine does not lie.

Even though it is true that machines do not lie in the way people do, they can be wrong. Moreover, Texas residents have the right to expect that the police will only use their machine in accord with the law, and if they do not, they should not get the benefit of seeing someone convicted of a DUI that they did not legally earn.

There are in fact several defenses available to those accused of drunk driving even if they blow over a .08, which is the legal blood alcohol content limit in Texas. Even with respect to the official machine located at the police station, for example, a person has the right to ask whether the machine was working properly and had been maintained in accord with the law.

Likewise, a person can claim that the officer did not use the machine correctly or was not properly certified or qualified to operate the machine ate all.

Furthermore, even if the machine was working correctly and used properly, it can only tell what a person's BAC was at the police station. It is possible that one's BAC was still going up after the traffic stop, which means that a close test that is only slightly over .08 does not necessarily prove a person was driving while over the legal limit.

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