Can You Refuse A Breathalyzer Test?
When an individual is pulled over and investigated for Driving While Intoxicated in Texas, the officer will usually request that he perform various field sobriety tests in addition to questioning that person as part of the DWI investigation.
Houston Criminal Defense Lawyer, Call (281) 853-8537
If placed under arrest for DWI, the officer will request that this person also submit to a breath and/or blood test.
If the suspect refuses a breath or blood test, his driver’s license will be administratively suspended unless a hearing is demanded within 15 days of the arrest. And the officer could apply for a search warrant for a specimen of the suspect’s blood.
So the question is, if this is standard protocol in a DWI investigation, why do some lawyers, police officers, and even some judges tell friends and family to refuse to perform these tests if pulled over and investigated for DWI in Texas?
To answer that question, we only have to consider what actually happens during a DWI investigation in Texas.
Evidence for Arrest
Beyond standard inquiries into a driver’s licensing, insurance, and the registration of the vehicle, questions by the investigating officer are just that – part of his investigation.
Questions about how much you had to drink, where you are going, where you are coming from, and a law enforcement favorite “on a scale of 1-10, how intoxicated do you feel?” are all designed to gather evidence.
In the same way, the field sobriety tests are tools used to later convince a jury that you were legally intoxicated and should be convicted of DWI.
These “tests” require you to perform unnatural and irregular tasks after a brief explanation and no practice whatsoever. And every little mistake – whether due to impairment, lack of balance, or misunderstanding the quick recitation of the rules – will be used by the officer to justify arresting you and then used again by the prosecutor when she asks the jury to convict you of DWI.
What Can be Gained?
Many citizens believe they can show the officer that they are not intoxicated and that it is safe for them to drive home.
But we all know about good intentions. The fact is that officers have to make a very basic decision out on the side of the road: Do I give the keys back to this person or should I err on the side of caution and remove this person from the road?
Knowing that these tests are not fair and will be used against you several times over the next few months, it may seem like there is very little to gain by participating.
This is especially true with the breath or blood test. Once the officer requests a specimen of your breath or blood, you are already under arrest!
That’s the first thing they will tell you before they ask you to submit to a breath of blood test – “you are under arrest….”. What can be gained at that point?
Some believe if they pass the officer will let them go. But citizens should remember that in Texas, “intoxicated” is defined as not having the normal use of one’s mental or physical faculties, or having an alcohol concentration of 0.08.
This means that even if a suspect’s alcohol concentration is under 0.08, if the officer believes that person does not have the normal use of his mental or physical faculties (hint: judged by the suspect’s performance on the sobriety tests), then that officer can STILL arrest that individual and charge him with DWI in Texas.
That means going to jail and facing DWI charges in court. It is true that if a suspect refuses to submit to a breath or blood test, the officer may choose to apply for a search warrant and, if granted, the officer may then force the suspect to submit to a blood test.
However, this is not something that automatically happens. Due to recent decisions by the Supreme Court of the United States and the Texas Court of Criminal Appeals, officers may no longer force a suspect to submit to a blood test without a valid search warrant signed by a judge.
This means that officers can no longer take your blood unless you agree or they have a valid search warrant to do so. In my experience, officers do not always apply for search warrants in DWI cases and even if they do, sometimes mistakes are made in the process that can later lead to the suppression of the blood test result at trial.
Contact a Texas DWI Defense Attorney
If you or someone you know has been arrested for DWI in Texas, contact our office immediately at (281) 853-8537.