Our Fort Worth DWI defense lawyers are often asked if evidence from portable breathalyzers can be used in court. Many people believe this evidence is admissible but the answer is no.
Police departments in Texas use two different types of devices. We explain on our website that they have been using the Intoxilyzer 5000 for more than two decades.
The second device is the Intoxilyzer 9000. This machine is a newer version of 5000 which was notoriously unreliable.
The evidentiary breath test machine is the one used at the police department that a suspected drunk driver will be asked to submit a test on after arrest.
Portable breath testing handheld machines are used by many police department before an arrest. A suspect may also be asked to perform field sobriety tests.
A police officer who has a portable breath test in their car can ask a suspect to perform a roadside test before an arrest.
A portable breath test device (“PBT”), is not a sophisticated device like an Intoxilyzer 5000. It is very small and used by officers at the scene of the arrest. Portable breathalyzers are not approved by Texas Department of Public Safety for use in criminal prosecutions or in administrative license revocation proceedings.
The reading of the breath test on a portable device is not admissible in court. It cannot be used at a trial.
However, officers are allowed to use the reading from a portable device in deciding whether to arrest a person. There is a restriction on the use of a portable breath test that requires an officer to be in the presence of the suspect for 15 minutes before administering or giving a portable breath.
This restriction is meant to ensure that the suspect doesn’t have anything come up from their stomach or put anything in their mouth during that 15-minute period.
Often officers fail to follow this basic procedure. Although the results of the test carried out on a portable breathalyzer are not admissible in court, prosecutors often have the officer testify that they gave a defendant a portable breath test and then arrested them.
Although the jury is not told the result of the portable breath test, the obvious implication is that the person failed the test. This statement can, therefore, prove harmful to the defendant in a DWI case.
The breath test that counts, or a blood test, is administered after a suspect is arrested at the police station.
If you were charged with a DWI, it’s important to act fast. Contact our experienced Fort Worth DWI attorneys here today for a free meeting.