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Breath testing can be very inaccurate.  The most inaccurate device is the portable breath test.  Given on the side of the road, the officer will generally do this if you have performed well on the standardized field sobriety tests.  These machines can pick up ambient odors, such as cologne or perfume and misread it as alcohol.  Portable Breath Test devices are so poor that courts do not recognize the results as being scientifically valid.

At the police station, an officer will ask if you would take a specimen of breath.  In Texas, these tests are performed on the Intoxilyzer 5000.



The intoxilyzer 9000 (Intoxi-LIE-zer) is the standard machine for taking breath tests in the state of Texas.  This is the breath test that counts.  If you take a breath test on the side of the road on a Portable Breath Test (PBT) it really doesn’t count and will not help you in keeping your license.  The Intoxilyzer 9000 has the ability to have a result print-out that can show whether the DWI breath test was valid through a number of statistics. However, the State of Texas doesn’t want a Defendant to have access to those statistics and has mandated they not be shown on a results page.  The Miers Law Firm looks for signs of damaged machines in their Texas DWI cases. Aside from the machine malfunctioning, it can make mistakes on the testing itself.  DWI attorney Mitch Miers looks for these mistakes to use in the defense of his clients.

If you refuse to provide a specimen of breath, the odds are high that an officer will obtain a warrant to collect a specimen of breath.  At this point, you have no right to refuse.  The code of criminal procedure states that an officer must present a warrant to the owner of the property (blood) being seized.  This requires more than a cursory flashing of the document.


Rarely does a defendant benefit by giving a specimen of their breath or blood. Specimen testing has been popularly classified as “junk science.” Breath testing is currently done in Texas on a machine called the intoxilyzer 9000. The company, CMI, that makes the machine has been fined by courts for refusing to provide the source code and has not allowed the machine to be used for peer review.


Blood testing can have more issues than breath testing. The process goes through more hands and your blood can be affected by environmental conditions, such as dirty room, improper storage, and mishandling during transport, that can actually make you Blood Alcohol Content (BAC) increase while it is in the tube! Fortunately, there is data available that can provide information that indicates problems with the test. Of course, this data isn’t just given to a Defendant.

Even if you have a specimen test that is below the .08 threshold, you will most likely have a DWI case against you. Prosecutors will often argue that at the time of driving you would have been above the limit. If you “pass” the test, you need a DWI attorney and the Miers Law Firm.


I wouldn’t take a DWI breath test or consent to a DWI blood test,  but your situation may be different.  There are truck drivers who will lose their CDL if they refuse the test so for them, it may be better to roll the dice.  Everyone has a different situation, so there is no cookie cutter answer for all.

Call the Miers Law Firm today and get Mitch Miers to work on your Defense.

Contact The Miers Law Firm Today

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