Right to Refuse a Breath Text in a Texas DWI: By Plano DWI Lawyer Troy P. Burleson

By Collin County DWI Attorney Troy P. Burleson

If an officer suspects you of drunk drinking you will probably be asked to submit to a breath test. As we have reported here before, there are many problems with the reliability of the breath test machine used by the State of Texas, the Intoxilyzer 5000. That being said, the question I get asked most often is, “If an officer asks me to take a breath test, do I have to?” The answer is absolutely NOT!!

Texas has what is known as the “Implied Consent Rule” regarding breath or blood tests. Most people have no idea that as a condition of being issued a Texas Driver’s License, they have given “implied consent” that they would submit to a breath or a blood test if requested by an officer during an investigation for drunk driving. However, the statutes that control the” Implied Consent Rule” in Texas specifically state that a person may withdraw their “implied consent” at any time and refuse to comply with an officer’s request for a breath or blood test. For a more detailed explanation of these statutes, see my previous article here.

So, what happens if you refuse a breath or blood test? First, your license may be suspended for a minimum of 180 days IF you lose your ALR hearing or if you are subsequently convicted or DWI. However, if you win your ALR hearing OR if you are found NOT GUILTY of DWI, then your driver’s license will NOT be suspended even if you refuse a breath or blood test. Second, there is a chance that an officer may seek a warrant and obtain a sample of your blood if you refuse a breath test. But, if the officer does just that, then at least your attorney can independently test the blood sample to check the results for accuracy. Moreover, there are many legal hurdles that the District Attorney’s office must overcome before blood obtained by a warrant can be used as evidence against a person.

Each person has to decide what he or she would do if an officer requests a breath or blood sample during a DWI investigation. If you agree to give a breath test, just know that you will have to accept the score that the machine gives you at the time you blow into it. Unlike a blood test, there is no opportunity to have a breath sample independently tested for accuracy.

Final Statement about Breath Tests:I have a question for anyone reading this blog. “If you give a breath test and the score is under the legal limit of 0.08, do you think the officer will release you and not charge you with DWI?”

If you answered, “Yes,” you are sadly mistaken. Remember, the state can prove you are intoxicated by proving that you:
1) had a breath or blood test over 0.08; OR 2) did not have the normal use of your mental faculties; OR 3) did not have the normal use of your physical faculties.

The “ORs” mean that proof of any one of those three items is enough to convict you of DWI. If you have a breath test under 0.08, then the officer and the prosecutors will argue that you have a low tolerance for alcohol so that you are actually intoxicated at a level that is lower then 0.08. I am not kidding!! So, if you are more than likely to get arrested NO MATTER what you score on a breath test, then why would you ever give one? Think about that.

Bottom Line: Submitting to a breath test makes the prosecutors’ job much easier!! Think about that if and when you’re ever asked to blow.

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