What Happens If I Fail a Breath or Blood Test in Texas?

A Failed Test Is Evidence, Not a Verdict

A BAC result above 0.08 from an Intoxilyzer 9000 or a Travis County Medical Examiner blood analysis gives the Travis County Attorney’s Office a per se intoxication theory under Penal Code §49.01(2)(B). But a test result is only as reliable as the process that produced it. The machine must be maintained. The blood draw must have an unbroken chain of custody. The result must reflect your BAC at the time you were driving — not the time you were tested. All of these are challengeable.

Immediately After a Failed Breath Test in Austin

License suspension clock starts. A first failed breath test triggers a 90-day ALR suspension if you do not request a hearing within 15 days of the DIC-25 notice. The suspension is separate from the criminal case and runs on its own timeline. This is the first thing we address when you call.

The criminal case moves forward. The Travis County Attorney’s Office will receive the Intoxilyzer 9000 result in the discovery file. They will use it as the core of their per se theory. But receiving the result is not the end of the defense analysis — it is the beginning of the technical challenge.

Challenging an Intoxilyzer 9000 Breath Test Result

APD uses the Intoxilyzer 9000. Every instrument has a maintenance log, calibration record, and error history — all obtainable through open records requests. We request the complete file on the specific machine used in your test. Common challenge points include:

• Maintenance gaps — any failure to service the instrument within required intervals
• Lapsed operator certification — the APD officer must hold a current Intoxilyzer 9000 certification
• 15-minute observation period — must be documented and uninterrupted
• Partition ratio — the machine assumes a 2,100:1 breath-to-blood ratio, a population average that varies significantly across individuals
• Mouth alcohol contamination — belching, regurgitation, or dental work can produce a falsely elevated result

See our full BAC and breath test defense page for the complete technical analysis.

Challenging a Blood Draw Result

Blood draws in Travis County DWI cases are analyzed at the Travis County Medical Examiner’s toxicology laboratory. The chain of custody from venipuncture through the lab analyst must be documented at every link. Challenge points include:

• Phlebotomist qualifications — the person drawing blood must be qualified under Texas law
• Tube type and preservation — the blood must be collected in the correct tube with the correct anticoagulant-to-preservative ratio
• Storage conditions — improper refrigeration can allow fermentation, producing additional ethanol post-collection
• Lab analyst certification — the analyst must hold current certification
• Gas chromatograph calibration — the instrument used for analysis must be properly calibrated

The 0.15 Enhancement

A BAC result of 0.15 or above on a first offense elevates the charge from Class B to Class A misdemeanor under Penal Code §49.04(d). The maximum fine increases to $4,000 and an ignition interlock device is mandatory on conviction. The same technical challenges apply — but the stakes of successfully suppressing or challenging the result are higher.

What to Do Right Now

Call an Austin DWI attorney immediately. The 15-day ALR deadline has already started. APD dashcam and bodycam footage has retention windows. The Intoxilyzer 9000 maintenance records are obtainable but require prompt open records requests. The earlier we are involved, the more complete the technical challenge we can build.