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If you were pulled over and given a DWI breathalyzer test, you may be confused about what happens next. You may have been arrested and put in jail for a short period of time. The DWI process in Texas can be extremely intimidating, especially if you’ve never been part of the criminal justice process before. Instead of admitting to a crime that you didn’t commit or being confused about your situation, call a DWI defense attorney right away. An experienced lawyer can guide you through the DWI process, even if you did take a DWI breathalyzer test. Contact Swate Attorney at Law today.


I get asked all the time, “If someone gets arrested for DWI, should they blow?”


OK. Now, let’s analyze this. You have been stopped for some reason. Any reason! I have even seen cases where the officer just wanted to pull you over and the ‘reason’ is that your license plate was not ‘properly illuminated’ or your ‘window was down’ on a cool day, or some such reason.

Then, he smells alcohol on your breath and goes through the standardized field sobriety tests and comes to the opinion that you are too intoxicated to drive and places you under arrest for DWI. Then he asks if you will submit to a DWI breathalyzer test.

Dude, you’re already arrested for DWI! He’s going to file the charges anyway under the first method of proving it, i.e. ‘by having lost the normal use of one’s mental or physical faculties’. He’s not going to ‘un-arrest’ you! When he turned on his red and blue lights the video camera automatically started and has been recording all that has happened. He’s on camera, just like you. His sergeant will review the video and ask, ‘why’d you let that guy go?’

So, if you blow and it’s below the limit you’re still arrested and you get a free trip to the county jail. (I once had a client who blew a 0.02 [¼ the legal limit] and he was still arrested!)

If you blow and it’s above the limit, you’ve just given the prosecution more evidence against you. The saying is true, “if you’re in a hole, stop digging!”


Here’s a little of the ‘science’ behind it: Texas uses the Intoxilyzer 5000, and has done so for many years. Programming and mechanics are outdated. The machine isn’t even warranted by the manufacturer to be accurate! Imagine that? It is monitored and ‘checked’ by a person who is on the State’s payroll. He or she is not even a true scientist but is entrusted to mix the ‘formula’ which is the base for the machine’s tests. The machine has a tolerance of ±0.02, which means a test of 0.08 could be a 0.10 (over the limit) or 0.06 (under the limit). It is temperature-sensitive. If you have a fever or your body is in a particular cycle, you will have an elevated reading.

There are many more things which could go wrong with the machine and the DWI breathalyzer. [If you blow too long (the officer always says, ‘keep blowing, keep blowing’) you will have an elevated test.] Breathalyzer Testing is a very technical part of DWI Defense. That is exactly why I attend as much continuing legal education in DWI Law as possible so I can stay on the cutting edge of DWI Law.


If you are charged with a DWI after taking a DWI breathalyzer test, then you still have options. With the help of a skilled attorney, you can negotiate your charges down or fight your charges to get them eliminated. Some of the common factors that we will use to fight your DWI breathalyzer test results include the following:

DWI breathalyzer tests are extremely touchy and must be properly calibrated and maintained. If they are not, or if the officer did not have enough experience to properly administer the test, then your results may not be accurate.

An experienced attorney can challenge your DWI breathalyzer test results and work to have your charges eliminated. If you cannot get your charges eliminated, then reducing your charges to a lesser offense may also be an option. An attorney can help you make these decisions about your future.


Although we advise you not to take a DWI breathalyzer test, you should know that there may be penalties if you refuse it. However, those penalties may be worth avoiding providing additional evidence to the prosecutor if your blood alcohol content level is higher than legally allowed. You should read more about Texas implied consent law before you decide what to do if you’re pulled over and the officer asks you for a DWI breathalyzer test.

According to Texas law, all drivers who are lawfully arrested for DWI have “implied consent” to take a chemical test to determine blood alcohol concentration (BAC) or drug presence. Thus, if the officer performs a lawful arrest, which means they have to have probable cause that you’ve been drinking or are under the influence of drugs, then you are legally obligated to take a chemical test.

The officer can decide which type of test to give you — either blood or breath. However, the officer cannot force you to take the test with some exceptions. If you are in an accident that results in serious injury or death, then the officer may force you to take a chemical test. Similarly, if you have a prior conviction related to intoxication assault or intoxication manslaughter or a DWI with a child in the car, then the officer can force a chemical test.

If you do refuse a DWI breathalyzer test or other chemical tests, then you may face consequences. You may face an administrative, or civil, suspension of your driver’s license of at least 180 days. For subsequent refusals, you may face up to two years of suspension of your driver’s license. However, these penalties can also be disputed by an experienced DWI defense attorney.


Texas law does not require that you submit to a preliminary alcohol screening prior to arrest. If the officer wants you to take a DWI breathalyzer test before arresting you, you can refuse it without penalty. The officer may be trying to gather evidence to support probable cause for an arrest; however, you can refuse to provide that evidence in the form of a DWI breathalyzer test prior to arrest.

If you were given a DWI breathalyzer test either before or after being arrested, you should contact a DWI defense attorney who can help you evaluate your specific case. Every situation is different, so you deserve a unique defense strategy for your case.


If you get arrested for a DWI, call me. I will be glad to answer every question you may have and then educate you even more for the steps ahead. You don’t have to deal with this situation alone. Contact a DWI defense attorney who can stand beside you throughout the police investigation and in court, if necessary. Call Swate Attorney at Law today.