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Grant M. Scheiner - Houston Criminal Defense Lawyer

Should I take a Breath Test?

As a Houston criminal defense lawyer, I frequently get the question, “If I am stopped for DUI, should I take a breath test.” Nobody has ever been surprised by my answer. Yet, the reasons, and there are many, not to take a breath test are far more complex than simply not incriminating oneself. People ask, “what if I only had one drink, then should I take the breath test?” I am not in the business of telling people what to do, but my answer is still no. Deetrice Wallace is another reason why.

Deetrice Wallace was a contract employee for the Texas Department of Public Safety. Her day job was a Houston ISD school teacher. From the looks of it, Ms. Wallace was a fine teacher and she was recognized as the 2007 Harris County Teacher of the year.

Ms. Wallace’s contract position with DPS was that of a Breath Test Technical Supervisor. This position is responsible for maintaining and calibrating the “infallible” intoxilyzer 5000. Apparently Ms. Wallace was too busy teaching because the Texas Rangers (guns and badges not baseballs and gloves) investigated Ms. Wallace for falsifying breath test maintenance records. The Harris County District Attorney’s office announced in a press release that Ms. Wallace has been charged with a state jail felony Tampering with a Governmental Record.

I have two DWI clients that I have found so far that have directly been affected by Ms. Wallace’s conduct. I do not think Ms. Wallace was some nut on an anti-dwi crusade. If I had to guess, I would just assume apathy and laziness caused this problem. That is truly sad considering people’s freedom, reputation, and employment abilities are drastically affected by a DWI conviction. DPS has invalidated 2600 breath tests.

So here is the question: What policy is DPS, the State of Texas, and our local prosecutors who are legally bound to “seek justice” going to change. Are we just going to keep letting DPS employees tell us if DPS machines are working. I wonder how long a DPS chemist or DPS breath test supervisor would last if one was honest about how unreliable and unscientific the intoxilyzer 5000 really is.

In every Breath Test Refusal case, prosecutors always say, “the defendant did not take the breath test because he/she knew it would show he/she was over a .08.” Actually, citizens should not take the breath test because NOBODY knows what it will show.