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 laboratory blood analysis gives the Travis County Attorney’s Office a per se intoxication theory under Penal Code §49.01(2)(B). A test result depends on the process that produced it: instrument maintenance, testing procedures, chain of custody, operator qualifications, laboratory procedures, and timing. The defense can evaluate each of these to determine whether a factual, scientific, or legal challenge exists.

After a Failed Breath or Blood Test in Austin

The ALR process begins separately. A first qualifying breath or blood failure generally carries a 90-day ALR suspension if a timely hearing is not requested. Texas DPS generally requires an ALR hearing request within 15 days after the person is served with the suspension notice. For breath tests, that notice is often provided at arrest. For blood tests, the notice of suspension may arrive later, after the lab result, and DPS instructs that the hearing request should not be submitted until that notice is received. Review the DIC-25 or other applicable notice to confirm the deadline.

The criminal case moves forward. The Travis County Attorney’s Office will receive the test result in discovery and may rely on it as part of a per se theory. Receiving the result is where the defense’s technical review begins.

Evaluating an Intoxilyzer 9000 Breath Test Result

APD uses the Intoxilyzer 9000. Each instrument has maintenance, calibration, and error records that can be requested. The firm requests the records for the specific instrument used in the test. Areas that can be evaluated include:

• Maintenance history: whether the instrument was serviced and inspected as required
• Operator certification: whether the operator held the required certification at the time of the test
• Observation period: whether the required pre-test observation period was conducted and documented
• Breath-to-blood conversion: the instrument relies on an assumed breath-to-blood ratio, and whether individual variation matters in a given case is a question for expert review
• Mouth alcohol: belching, regurgitation, or other conditions can be relevant to whether a result reflects deep-lung breath

Whether any of these issues affects the admissibility or weight of the result depends on the records and the facts. See our BAC and breath test defense page for more detail.

Evaluating a Blood Test Result

Blood evidence in Travis County DWI cases is analyzed by a forensic laboratory, and the chain of custody from collection through analysis should be documented. Areas that can be evaluated include:

• Collection: whether the person drawing blood was qualified and the draw complied with applicable requirements
• Tube type and preservation: whether the sample was collected and preserved according to accepted procedures
• Storage conditions: whether storage and handling could affect the sample, which may require expert review
• Analyst qualifications: whether the analyst held required credentials
• Instrument calibration: whether the gas chromatograph was properly calibrated and controlled

Not every documentation gap or lab issue makes evidence inadmissible. The effect depends on its legal and scientific significance.

The 0.15 Enhancement

Under Penal Code §49.04(d), a DWI with an alcohol concentration of 0.15 or more at the time the analysis was performed is a Class A misdemeanor. The maximum fine increases to $4,000, and ignition-interlock requirements may apply depending on the disposition and court. The same evaluation of the testing process applies, and the stakes are higher.

What to Do Now

Contact an Austin DWI attorney promptly. Review the notice you received for the ALR deadline. Video-retention periods vary by agency, and instrument and lab records should be requested early. Acting promptly can give the defense more time to evaluate the testing evidence.