Monday, July 16, 2012

Texas DWI - What if I Refuse the Breathalyzer Test?

According to the NHTSA, the highest percentage of drunk or impaired driving fatalities occur in North Dakota, South Carolina and Texas, with drunk driving causing approximately 42% of all wrecks in Texas. In fact, in 2010 Texas had the dubious honor of having the highest number of alcohol-related accidents in the U.S., followed by California and Florida. Even though DWI is a serious problem in the Lone Star State, in some cases police officers and state prosecutors can be overly aggressive in their pursuit of a conviction. A conviction for DWI in Texas is a criminal offense that will restrict your liberties, provide you with a lifelong criminal record and cost you a bundle of money. Drunk driving consequences are far-reaching and life-altering and should never be taken lightly.

Should You Refuse a Breathalyzer Test?

Making the decision as to whether or not to agree to a breathalyzer test is not easy. In some instances when you are unsure of whether your BAC is below the legal limit of 0.08 percent, then it could be a good idea to refuse the test thereby avoiding giving the prosecution more evidence against you. Keep in mind that even if you believe your BAC is less than 0.08, if you have been drinking at all your judgment may be impaired and you may not have a realistic idea of what your BAC really is. Additionally, although 0.08 is the legal limit, if your BAC is .06 or higher, it may well fall within the machine’s “margin of error.”

How the Implied Consent Law Affects You

Due to the implied consent law you could be arrested for refusing a breathalyzer test which brings a license suspension for 6 months (if this is your first DWI arrest). Of course this is less than you will likely get should you be convicted on your DWI charges, but if you are convicted you will face not only the license suspension for the breath test refusal but criminal penalties as well. In many cases an experienced Houston DWI lawyer may be able to beat the license suspension for refusal to take a breathalyzer test or may be able to help you obtain an occupational license. Additionally, it can be harder for the state to prove their case against you if they are lacking any real physical evidence that your BAC was over the legal limit and you were, in fact, driving drunk.

Arrested Without Proof of BAC

Specific to Texas law, many times when you are asked to blow into a Breathalyzer you are likely already under arrest, meaning the arresting officer is pretty sure he or she has probable cause. This belief could be based on your performance on the field sobriety tests or other observations made by the police officer. If the officer has sufficient reason to believe you’ve lost the normal use of your physical or mental faculties, then your DWI can be “proven” through that belief. Under those circumstances, even if you agreed to the breathalyzer test and blew under 0.08 the officer still would be under no obligation to let you go home, you would be charged with DWI and suffer the many consequences those charges bring. Under these conditions, it would likely be better if you simply refused the breathalyzer test.

Should You Follow the Lead of Texas Politicians?

Interestingly, an issue of the Austin-American-Statesman looked at the state’s drunk driving statistics from the past few years and found that 100% of elected Texas officials—state senators, judges and commissioners among them—refused to submit to a breathalyzer test when pulled over by a police officer for suspicion of DWI. The story stated that while the refusal rate among the general public is about 50%, the rates for those at the Capitol building is 100%. The theory behind this is that these elected officials may be a bit more savvy than the “average” citizen and know that while there are consequences to a refusal, those consequences can often be mitigated with skilled legal counsel. Drivers must also be aware that although they can politely refuse to submit to field sobriety tests as well as breathalyzer tests, an aggressive police officer can obtain a warrant which forces the suspect to submit to a blood draw in order to prove the BAC. In fact, over the past few years, certain jurisdictions have been known to take DWI suspects to the hospital or jail for a forced blood draw.

What’s the Problem with Breathalyzers?

In short, breathalyzer tests have been proven to be both unreliable and inaccurate, with many of these machines having a margin of error as high as 30%. In fact, breathalyzer machines can give improper readings in those who belch or hiccup prior to the test, because of residual alcohol in the suspect’s mouth or even due to the temperature of the mouth. The machines are calibrated to test the breath at 34 degrees centigrade yet studies show that at the time of a DWI arrest most people come closer to 35.5, meaning as much as a 20% higher reading. Finally, a person’s individual metabolism may adversely affect the breathalyzer test—in those with slower metabolisms the body takes a longer time to absorb the alcohol resulting in a higher reading than the actual amount of alcohol in the bloodstream.

Call a DWI Attorney Immediately

No matter what decision you make as far as submitting to a breathalyzer test, you must call a knowledgeable Houston DWI attorney immediately. Exercise your right to remain silent until you have been given the opportunity to call an attorney. At that point your attorney can try to present evidence and point out actions you took which are inconsistent with intoxication.

Author: Sullo & Sullo Attorneys

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