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To Breathe or Not to Breathe?

Some of the most common questions I get asked as a criminal lawyer involve the breath and blood tests during or after a D.W.I. (Driving While Intoxicated) stop. People want to know “do I take the breath test?” Or, more often than not, “should I have taken the breath test?”  Well, I won’t tell you what you should or should not do, that is up to you, but an informed decision is never a bad thing, right?

Let’s start with the basics. There are two occasions where a person is asked to give a sample of their breath, before arrest and after.  If you have not been arrested, then the test is being used to determine if there is probable cause for your arrest.  The result of this test may assist the officer in his decision to make an arrest, but the results will not have an effect on your driver’s license and will likely not be admissible in a subsequent prosecution.

The second occasion is after your arrest. Once an officer places you under arrest for the offense of Driving While Intoxicated the officer will request a specimen of your blood or breath. He makes this request by reading to you, a person who is now enduring the stress of one of the most nerve racking events of their lives, a long form called the Police Officer Statutory Warning.  This form, provided by the Texas Department of Public Safety, explains that you are under arrest for the offense of Driving While Intoxicated (D.W.I.) and are being asked to give a specimen of your blood or breath, and that the specimen will be analyzed to determine the alcohol concentration in the blood or breath sample.

The form goes on to state what a refusal means for your driver’s license in the state of Texas. I am only covering the ramifications of a DWI first here (for seconds or thirds etc. please take a look at the form, though I often assume if you are on number two or three you are somewhat familiar with this process already). For a first offense, a refusal to give the sample can result in your license being suspended for 180 days.

The form also states how consenting to the test affects a person’s license, should the testing reveal that the person has a blood alcohol concentration at or above a .08 (the so called “legal limit” in Texas).

In Texas, a driver’s license suspension hearing (Administrative License Revocation hearing or ALR) is separate and apart from a criminal case for committing the offense of D.W.I.  What the officer is not telling you is that if you fail the test, they will certainly be using those results against you in the license revocation hearing and the criminal prosecution. Oh, and don’t ask if you can talk to a lawyer before refusing or consenting, there is no right that grants you the opportunity to consult one first. Whether you realized it or not, you signed a consent to give the specimen when you got your license. So if you ask for an attorney first, the officer may just laugh at you and ask again or he might just take your request as a refusal.

At this point, you are already under arrest for the offense, so taking it doesn’t mean you will be set free, even if you pass. In fact, if you give a sample of your blood, the results for that won’t be available for weeks.

So let’s say you refused. You are now facing a license revocation by the Department of Public Safety. You can either take it lying down or request a hearing on the suspension within fifteen days. I always recommend the latter. If you request a hearing, the Department has to put on evidence that there was: a) reasonable suspicion to stop you, b) probable cause to arrest you for the D.W.I., and c) that you refused to give a specimen. While it is generally easy for the Department to successfully do all of this and suspend your license, sometimes these can be won through effective argument or by subpoenaing the officer to attend the hearing and that officer doesn’t show for the hearing because he has better things to do (i.e. fighting crime). Win and you get to keep your license.  If you consented to the test and failed (.08 or higher) you will likely lose your license for 90 days, but if you passed, you also get to keep your license.

Let’s move on to the criminal prosecution for a D.W.I. Now, try to imagine fighting your D.W.I. case in court with an affirmative finding that your blood alcohol level was a .08 or higher. Not looking good is it?  The officer on the side of the road essentially asked you to turn over evidence against yourself. I know… I know there seemed to be something in the Bill of Rights about that…but somehow it doesn’t apply here, because remember, you signed that away to get the license in the first place. You give them the sample, and they can do a little victory dance. (Just for fun, here is a video of some dancing cops).

But wait, there’s more! The law on D.W.I. was amended last year and went into effect September of 2011. Now, if you are found to have a blood alcohol level at or above a .15, the offense can be charged as a Class A misdemeanor. Normally, a D.W.I. 1st is a Class B misdemeanor. So there seems to be a disincentive to consent to the blood or breath test.

Of course, if you consented, and passed the test, the prosecution against you becomes much more difficult. Most counties will typically not file the charges against you in the first place, while others (though rare) may still choose to prosecute you  (I’m looking at you Collin County) on the theory that you had lost control over your mental or physical faculties due to the introduction of alcohol.

So do you give the sample or not? Well, it is always up to you. It is your call and yours alone and there will be no one there to advise you when faced with the choice. Now, if you know you can pass with flying colors, you may avoid some legal hassles (though not a night in jail, by the time you get the results you will have long since been arrested, released, and given a court date) and a prosecution for the offense. But what if you are not sure where you will fall? After all, it is not illegal to have a drink then drive (provided you are above the age of 21), only to drive while intoxicated.  The choice is up to you, but at least now, you might be armed with the facts before you find yourself saying yes or no to the question: Will you provide a sample of your breath or blood?

by: Ryan Lee

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