What Causes Breathalyzer Tests to Read False Positives?

Fortbend DWI Arrest

Law enforcement officers have made a concentrated effort to create the common belief that breathalyzer tests are foolproof. Realistically, they’re subject to many errors and may be inaccurate more often than they are accurate. Here are several things that can cause a breathalyzer test to produce falsely positive results and how to get legal help after a DWI arrest.

A High Mouth Alcohol Level 

Even though they are widely used by law enforcement, breathalyzer tests are actually quite rudimentary. They aren’t able to distinguish between alcohol that has been absorbed into someone’s blood and alcohol that is simply in one’s mouth. This means that swishing with mouthwash on the way to work could get you pulled over and charged with a DUI if you fail the breathalyzer.

A Test That Is Administered Too Soon After the Driver Drank or Ate 

Drinking or eating at all before a breathalyzer test — whether alcohol is involved or not — can also skew the test results. The officer should be observing you for at least 20 minutes prior to the test to make sure you haven’t eaten or drank anything. If they fail to do so, your test results may be dismissed on this factor alone. 

If the Driver Has Acid Reflux or GERD 

Acid reflux is a painful but common condition where food and drinks inside the stomach are pushed back up into the throat due to the upper esophageal sphincter becoming weaker and weaker over time. Besides creating bothersome and sometimes even debilitating chest pain and other problematic symptoms, this condition — called Gastroesophageal Reflux Disease, or GERD — can cause a person who is stone-cold sober to fail a breathalyzer test. 

Your criminal defense attorney can help you get records of your medical treatment for GERD to provide to the court as evidence that it’s highly unlikely that the breathalyzer test the police officer administered was accurate. 

If the Breathalyzer Test Wasn’t Correctly Calibrated  


The accuracy of a breathalyzer test depends greatly on the equipment being serviced and calibrated appropriately and in a timely fashion. Breathalyzer tests that aren’t calibrated regularly are more likely to produce skewed results, which can easily be thrown out of court if argued against by an experienced criminal defense attorney.

Was Your Positive Breathalyzer Test False? Get Legal Help Today  

Having a breathalyzer test come back positive when you haven’t been drinking and driving is a frightening experience that leaves you feeling powerless. Defend yourself against false allegations of driving while intoxicated with the help of experienced Fort Bend criminal defense lawyers Segura & Kiatta. Call today for a consult at 281.570.6400.



By : admin | August 3, 2020 | DUI

Do You Have to Take a Roadside Sobriety Test in Texas?

If an officer pulls you over because they believe you may be driving under the influence of alcohol or drugs, you’ll likely be asked to perform field sobriety tests, often called roadside sobriety tests. Here’s what you should understand about sobriety tests and if you have the right under Texas law to say no. 

What Are Roadside Sobriety Tests? 

Roadside sobriety tests are a collection of three tests that are designed to help an officer determine if a driver is intoxicated or not. During the tests, officers are looking for signs of impairment, including slurred speech, poor balance, difficulty remembering test instructions, and more. Here are the three standard roadside sobriety tests used in Texas: 

Walk & Turn Test 

During a walk and turn test, the officer will usually ask you to walk along a line for ten steps, heel-to-toe. Then, the officer asks you to pivot and walk back along the same line for ten more heel-to-toe steps. 

Horizontal Gaze Nystagmus Test 

When a person is under the influence of drugs or alcohol, their eyes may develop temporary nystagmus, or a horizontal “shaking,” especially when looking to the sides. An officer will usually ask you to follow a light or another object with your eyes only, without turning your head. 

One-Leg Stand Test 

The one-leg stand test involves you elevating your leg in front of you with your foot outward and holding it a short distance above the ground while maintaining your balance on the other leg. This test is performed for several seconds. 

Your Right to Decline a Roadside Sobriety Test in Texas 

In Texas, you have the right to decline a field sobriety test. Police officers typically won’t offer up that information and may even suggest that you have to take the test. You do legally have to submit to chemical testing (usually with a breathalyzer) or your license will be suspended, but roadside sobriety tests are not included. 

It’s typically in your best interest to decline field sobriety testing. There’s no risk your license will be suspended, and chances are high that because the tests are highly subjective and largely inaccurate that the results will not be in your favor.  

When Should You Contact an Experienced Criminal Defense Attorney? 

If you’ve been arrested for driving under the influence, don’t wait to contact a criminal defense lawyer. This is especially true if you took a field sobriety test and failed. An attorney can help you challenge the results and validity of sobriety tests. Call Fort Bend DWI lawyer Anthony R. Segura for a consultation today at (281) 240-3941. 

By : admin | May 28, 2019 | DUI

How to Answer an Officer’s Scale Question on A Suspected DWI

Be Prepared In The Event That You’re Pulled Over For A DWI

Being pulled over for a suspected DWI is always an unnerving situation and one that can cause you to wonder whether or not you have answered questions appropriately or given an officer any other indication that you could be under the influence of alcohol.

Unfortunately, officers across Fort Bend and the rest of Texas might rely on a question that can be a seemingly trick question. The question will appear as something such as, “on a scale from 1 to 10 where would you rate your current intoxication level if a zero is totally sober?”

An officer might ask someone they have pulled over where this person deems himself to be on this scale and you might feel as though you have no other choice to but to answer the question as honestly as possible since the officer has already pulled you over. Even when people are not intoxicated, however, many people give a response of a number other than zero. This is a trick question because any number outside of zero is an admission that you in some way feel impaired in your driving.

Since this is a scale question, people are tempted to answer within the range of 1 to 5. However, an officer could suspect that you are under the influence of alcohol if you give any other number answer than zero and many lay people do not understand the legal definition of intoxicated under Texas law. Furthermore, the officer might not define this or explain this appropriately for the person under investigation. Intoxication under Texas law is classified as not having the normal use of physical or mental faculties due a controlled substance, dangerous drug, introduction to alcohol or a combination of two or more of these features.

Be aware that you need to present these concerns and any questions asked of you during the pullover process to your experienced Fort Bend, Texas lawyer.    Have your case reviewed immediately to get all possible help defending your freedom.

By : admin | January 25, 2019 | DUI

What Is the Definition of Intoxication Throughout Texas?

If you have recently been arrested for DWI in the state of Texas, you are likely curious about whether or not your case meets the definition of intoxication. Intoxication under the Texas law means that you do not have the normal use of your physical faculties by reason of introduction to a controlled substance, dangerous drug, a drug or alcohol or any combination of those substances, or not having the normal use of your mental faculties because of the introduction of any of those substances. Furthermore, the definition of intoxication in Texas could be referring to a person who has an alcohol concentration of 0.08 or more.

Typically, the prosecutor in a Texas DUI case only needs to prove one of those three ways in order to obtain a conviction in your case. If the jury believes that the person has lost their mental faculties, for example, they could be convicted of DUI. Texas law refers to alcohol concentration based on the number of grams of alcohol per:

  •      67 ml of urine
  •      100 ml of blood
  •      210 liters of breath

Unless you are an experienced toxicologist and have your own calculator, you will be unlikely to determine your own alcohol concentration in your body. The amount of alcohol in each of those above-listed definitions is not necessarily equal. This means that one test could confirm your innocence, whereas another could hint at your guilt with a reading of 0.08 or more. The general guideline of having one beer, one glass of wine or one shot of whiskey for an hour could help you, but a knowledgeable Texas DUI lawyer will likely be necessary if you need to defend yourself in such a case.   

From your perspective, it might seem like the officer overreacted, especially when it comes to making that first determination about whether or not you are under the influence. If you can show in court that the offer acted in ways that he or she shouldn’t have given the situation, this information can be used in your defense strategy.

By : admin | September 4, 2018 | DUI
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