Should I take a Breath Test? A prosecutor says no

One the questions people always ask criminal defense lawyers is whether they should take a breath test if they are stopped for suspicion of driving while intoxicated. The answer is almost always No. There are a number of reasons for that. One is that breath testing machines - intoxilyzers - are nothing more than machines - which means they malfunction, and produce false results. Breath testing is based on a number of assumptions - including the temparature of your breath, as well as the partition ratio - the ratio of ethanol in air to ethanol in water. As with most assumptions it is true for some, and not for others.

Another problem is that the machine is not directly measuring alcohol. The machine has to make a number of calculations to come up with a result. It's a complicated software formula that no one knows how it operates since the companies refuse to disclose the code. In other words, you have to trust the manufacturer when they say the machine is accurate.

Prosecutors know all of this. So what advice do you think they would give to someone who is pulled over? A Bexar County prosecutor was asked that question by a friend and told him to refuse the breath test.Unfortunately, that advice cost her her job. 

This post is not about the unfairness of firing someone who is trying to help a friend. Instead, it is about what the prosecutor did to help a friend - telling her to not take the breath test. If a prosecutor is giving their friend that advice, what does that tell you about the wisdom of taking a breath test?

 

 

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