The Scientific Director 

Texas’ 50+-year old breath test program is administered by the “Scientific Director” of the Department of Public Safety. The Scientific Director is responsible for top-down decisions and everyone in the program. Roughly 700 law enforcement agencies are covered, as well as about 6,000 cops who are certified breath test operators. 

Title 37, Part 1, Chapter 19 of the Texas Administrative Code contains the rules for the program. Every aspect of the program is created and administered from the Scientific Director’s office.

One of the responsibilities of the Scientific Director is to designate which breath test device(s) are approved for “evidentiary” use.  In 2016, the Scientific Director approved the Intoxilyzer 9000 to replace the Intoxilyzer 5000 and Intoxilyzer 5000 EN, devices which had been in use for decades. Interestingly, only Intoxilyzer-branded products made the list, despite many being on the market and approved by other states. 

Technical Supervisors and Breath Test Operators

The program’s Scientific Director also appoints “Technical Supervisors.”  They are in charge of Intoxilyzer 9000s in each of 30 geographically assigned zones. Similarly, Breath Test Operators (BTO), typically street cops, are trained how to operate the machine and gain a certification as a BTO. They are supervised by Technical Supervisors.

Frankly, running the machine is essentially idiot-proof because the machine is all but fully automated, so much so their operator manual says it: “[s]ubject testing is highly automated.” One of the main functions for a BTO is to conduct a 15-minute observation period to reduce the possibility of mouth alcohol being present. (That’s due to a problem with breath testing: mouth alcohol can skew a result dramatically upward.) 

Here's a sample of normal questions and answers for a BTO in court regarding how the machine is operated.

Q: “You went to a class to become certified as a breath test operator? A: Yes. 

Q: You have to take a retraining class periodically? A: Yes, to maintain my certification.

Q: You prepare the Intoxilyzer prior to a person blowing into it? A: Yes. 

Q: What exactly do you do with the Intoxilyzer to prepare it? A: I turn it on, let it warm up, then it goes through its diagnostic checks. When it finishes its checks, I can go forward with the test.

Q: Do you input information to the machine? A: Yes. I scan the person’s driver license with the Intoxilyzer.  If the license can’t be scanned, I type in the information.  It beeps when it’s ready and tells us the next steps. 

Q: What happens when it’s ready to take a sample? A: When the time comes to blow, I take a plastic mouthpiece from its wrapper and insert it into the end of the tube. I raise the tube to the person’s mouth and tell them to blow hard and steady until I tell them to stop. The Intoxilyzer notifies me when it has enough of a sample. After the first sample has been analyzed, a second sample is taken. I repeat the same process when the Intoxilyzer is ready for it. 

Q: What do you do after the samples are complete? A: When the machine finishes its processes, it prints a result.” 

As you can tell, the process from the BTO standpoint is extremely simple.

Why Use Breath Testing?

Breath test devices like the Intoxilyzer 9000 quickly provide cops with numerical evidence they can use in DWI prosecutions. In other words, breath testing makes it a piece of cake to get a number to use at trial to show an accused person was “intoxicated.” 

Texas law defines intoxication as .08 g/210L (for breath) OR “not having the normal use of mental or physical faculties by reason of the introduction alcohol, another substance, or a combination of any two substances.” Whether the substance is legal is irrelevant; prescription and over-the-counter medications can render a person intoxicated.

If the state is relying solely upon the number on the breath test, that is an example of a “per se” prosecution relying upon the .08 or greater definition of intoxication.  The state may also elect to use the breath test result in conjunction with other evidence to try to prove the standard definition of intoxication.

Next up…

In my next post, I’ll explain the scientific concepts behind breath testing.