Breath Test or Blood Test in San Antonio

If you have been arrested for driving under the influence (DUI) in San Antonio, one of the critical aspects of your case may be the breath or blood test administered by law enforcement officers. These tests are used to determine your blood alcohol concentration (BAC) and can play a significant role in the outcome of your case.

However, the results of these tests are not always conclusive and may be challenged. Working with an experienced San Antonio DUI attorney can help protect your rights and guide you through the complexities of breath or blood test evidence in your case.

Call The Law Offices of George A. Scharmen today at (210) 405-9730 or reach out online for an aggressive defense of your rights in San Antonio, TX!

Which Test Should I Take if I Am Arrested?

This question is the one most asked of me in casual conversation when people find out that I am a DWI lawyer. The ideal answer is, of course, “Neither!”

However, in today’s legal environment, aggressive law enforcement officers are going to do their best to obtain one of them, and they have the legal tools to do that. Let me break it down for you so that you can make an informed decision about this important question.

No Refusal/Implied Consent

First, the law in Texas says that when you got a drivers license you agreed to give a blood or breath specimen. (I’m sure you remember.) Therefore, you have to give one or the other, or the law will suspend your license- maybe.

There is even a legal form that all arrestees are supposed to get after arrest setting out their rights and obligations, and it is usually entered into evidence at their trial, should they have one. The most obvious choice is to choose a license suspension over evidence that will be used against you in court. In other words, refuse a breath test.

Well, what happens after that?

What Happens If I Refuse a Blood Draw?

It turns out that the United States Supreme Court disagrees with Texas and all other States that have implied consent statutes. Because a breath test is not as invasive as a blood draw, a breath test is not a “search” as that word is defined in the lexicon of laws dealing with searches and seizures under U. S. law and the Constitution. So they can just ask for a breath test, and if you refuse, they can take your license-maybe.

However, a blood draw is a search within the meaning of the laws of the U. S. and the Constitution. Therefore, if you refuse to give permission for a blood draw, the police cannot take your blood unless they get a search warrant from a judge. Will they really do that? Not always, but in most instances, yes. However, delay favors the defendant in this situation. So go for it! Just say, “No, Sir.”

Blood Tests in Bexar County, Texas

Now in San Antonio and Bexar County the officers will get a search warrant and take your blood if you refuse a breath test. It turns out, that’s ok! In this County the prosecutors don’t use the blood results in a trial, and they have not been using them for quite some time. We don’t know when they will start using them, but even if some time in the future they will, it’s still ok.

If your lawyer knows something about blood testing and the lab that tested your blood, it’s not that easy for the prosecutors to introduce the results into evidence. In fact, most prosecutors in this area have not really been trained much about it because most people just plead guilty. In some rural areas they don’t take blood draws, and if you refuse a breath test, just like in San Antonio you will end up with neither a breath test result nor a blood test result. Cool. So always refuse a breath test right?

What Happens in The Rest of Texas?

The breath testing program in this State is a bit of a mess in a lot of places. There was a time when breath test results were like the “Gospel Truth” in DWI cases, and the State’s experts who testified spoke the Gospel.

It turns out that when the law started really putting the burden on the State to show breath testing is SCIENCE, things started breaking down – things like breath test machines. It turns out that the program got so lazy, that in a lot of areas of the State they didn’t even calibrate the machines!

The records showed that the machines were failing, a lot, and most of the time they failed when the supervisor wasn’t even there. He didn’t even know about it most of the time. When the records became available, the Department of Public Safety started having trouble explaining it.

Some prosecutors got mad at the Department for not providing information to them about the failures of the machines and their lack of calibration. If you have a lawyer who knows a lot about breath testing, the prosecutors may not be able to get that test result into evidence. So if you are in a rural county somewhere, it might be okay to take a breath test, but as a general rule you should just say “No.”

Legal Implications of Breath or Blood Test Results

In the event you accept to take a breath or blood test, the results will have a significant impact on your case. A BAC of 0.08% or higher is considered illegal for drivers in Texas, and a positive result from either a breath or blood test may lead to DUI charges.

However, just because a test result shows that you are above the legal limit, it does not automatically mean that you will be convicted of DUI. A skilled San Antonio DUI attorney will thoroughly examine the circumstances surrounding your arrest and the administration of the test to determine if any legal issues or procedural errors occurred.

Several factors can affect the accuracy of breath and blood tests, and it is crucial to address these issues during your defense. By reviewing all of these potential issues, a San Antonio DUI attorney can determine whether the breath or blood test results should be challenged or excluded in court.

Defending Against DUI Charges Based on Test Results in Texas

A thorough understanding of the legal process and the potential weaknesses in the testing procedure is essential for defending against DUI charges in Texas. Here are some strategies to challenge DUI charges based on test results:

Challenging the Accuracy of the Test: Breathalyzer and blood tests are not infallible and can produce inaccurate results for various reasons, including improper calibration, equipment malfunction, or errors in administration. An experienced San Antonio DUI defense attorney can scrutinize the testing process and challenge the accuracy and reliability of the test results.
Questioning the Validity of the Traffic Stop: The police must have a valid reason to pull you over for a DUI investigation. Traffic stops that are not lawful may result in inadmissible evidence, including test results.
Challenging Probable Cause for Arrest: The police must have probable cause to arrest you for DUI. If there is insufficient evidence, apart from the test results, to establish probable cause, the arrest and subsequent charges may be challenged.
Medical Conditions and Medications: Certain medical conditions and medications can affect the accuracy of breath and blood test results. Evidence of a medical condition or medication that could have affected the test results can be provided through medical records or expert testimony.
Chain of Custody Issues: Ensuring the proper chain of custody for blood samples is crucial to maintaining the integrity of the evidence. If there are any discrepancies in the handling or storage of the blood sample, the test results may be challenged.

Defending against DUI charges based on test results in Texas requires a comprehensive approach that involves challenging the accuracy of the test, questioning the validity of the traffic stop and arrest, considering medical conditions and medications, and addressing any chain of custody issues. Consulting with an experienced San Antonio DUI defense attorney can provide valuable guidance and support in building a strong defense strategy tailored to the specific circumstances of your case.

Contact a San Antonio DUI Attorney

If you have been arrested for DUI in San Antonio and are facing a breath or blood test, it is important to seek legal counsel immediately. The Law Offices of George A. Scharmen is here to help you navigate the complexities of DUI law and defend your rights.

Call The Law Offices of George A. Scharmen today at (210) 405-9730 for an aggressive defense of your rights in San Antonio, TX!

Continue Reading Read Less

Rave Reviews in Our Clients' Own Words

Five-Star Client Testimonials

"He has had many years of practice and is an honest and loyal attorney."
Former Client
"The dismissal saved my career and my professional license."
Bob V.
"I truly had someone on my side."
Jonathan R.
"Highly recommend!"
Former Client
"He is always available to answer my questions."
Former Client