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Texas Officials Implicated in Potentially Faulty Breath Tests

Updated: Jul 9, 2023 @ 2:25 pm

Less than 1 minute Reading Time: Minutes

Texas readers of this blog have read some of the competing policy issues involved in breath or blood testing of individuals arrested for driving while intoxicated.

Presumably, an arresting officer’s DWI arrest is supported by probable cause determinations that he or she made throughout the entire stop. The arrest report might summarize the basis for the DWI arrest, starting with the reason for the initial stop, such as an observed traffic offense or erratic driving.

The report might also describe the subsequent interview with the driver, noting any slurred words or logical fallacies. The officer might also note the results of any field sobriety testing, as well as any observable physical characteristics suggesting the driver was intoxicated, such as bloodshot eyes or smelling alcohol on the driver’s breath.

Implied Consent

Readers may have heard about the state’s implied consent law, which authorizes blood and breath testing only after a DWI arrest supported by probable cause. If a driver refuses, the burden of proof shifts, in a sense, requiring the driver to request a hearing to avoid automatic license suspension.

Lawmakers weighed this potential invasion of procedural rights against the need for public safety, ultimately concluding that the personal invasion was minimal because an arresting officer is expected to follow the above-described DWI protocols in making his or her probable cause determination.

However, a recent story calls into question whether some DWI arrests were procedurally tainted. According to officials at the Texas Department of Public Safety, a DPS supervisor may have allowed unqualified individuals to operate breath-testing machines, potentially making the breath test results unreliable. Officials believe that as many as 1,000 DWI cases in the greater Houston area could be affected.

Source:, “More than 1,200 DWI cases may be compromised,” Brian Rogers, May 23, 2013

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