Do I Have to Take a Breathalyzer Test During a DWI Traffic Stop?

 Posted on November 09, 2021 in Criminal Defense

Being pulled over by a police officer can be a stressful and troubling experience, regardless of the possible violations that a driver may be charged with. Those who are pulled over on suspicion of drunk driving may be looking at serious penalties if they are arrested on DWI charges. A DWI conviction can result in significant fines, time in prison, and the loss of one’s driver’s license. Because of this, drivers may wonder about their options when an officer asks them to take a breathalyzer test that will measure the alcohol in their system. By understanding whether these tests can be refused and the potential consequences of doing so, drivers can make the right decisions that will help them minimize the possible penalties they may face.

Implied Consent, Roadside Breathalyzer Tests, and Other Chemical Tests

Texas, like most states, uses the principle of “implied consent” when addressing permission to take chemical tests of a person’s blood alcohol levels. According to the state’s laws, a person who is arrested based on the suspicion that they have operated a motor vehicle on a public road while they were intoxicated is deemed to have consented to give a breath or blood sample that can be used to determine their blood alcohol content (BAC).

It is important to note that implied consent applies to blood alcohol tests taken after a person is arrested, and not to any roadside tests that a police officer may ask a person to take. In many cases, an officer will ask a driver to blow into a portable breathalyzer to determine whether they are over the legal blood alcohol limit. These devices can provide an estimate of a driver’s BAC, but they are not sensitive enough to give an accurate reading, and their results cannot be used as evidence in a criminal case. Instead, they are used to determine whether an officer can reasonably suspect that a driver has violated the law, and they may provide an officer with probable cause to make an arrest. Drivers are allowed to refuse these tests, as well as any field sobriety tests requested by an officer, with no legal consequences, although that refusal may provide an officer with reasonable suspicion that the driver has been drinking alcohol, and the officer may perform an arrest.

After a driver is arrested and brought to a police station, they will be required to take a test that is meant to accurately determine their BAC level. This may be a breathalyzer test, or a person’s blood may be drawn and tested. A driver is allowed to refuse to take these tests, although a refusal will result in a suspension of their driver’s license for at least 180 days. If a driver submits to a test, and they are found to be over the legal BAC limit of .08 percent, their driver’s license will be suspended for at least 90 days. These suspensions will apply regardless of whether the person is ultimately convicted of DWI, and if a driver is convicted, they will face additional penalties, including fines, jail time, and longer periods of license suspension or revocation.

It is also important to understand that even if a person refuses to consent to a BAC test, officers may be able to obtain a search warrant that will allow a test to be performed without the person’s permission. In general, a breath or blood sample may be taken involuntarily if a driver was involved in an accident that resulted in someone else’s injury or death, if a driver was arrested for DWI with a passenger who was under the age of 15, if the driver had two previous DWI convictions, or if the driver had one previous conviction of intoxication assault or intoxication manslaughter. 

Contact Our Llano County DWI Defense Lawyer

If you have been arrested for DWI, the Law Office of Russ Alan Baker, PLLC can help you determine your best options for defense. Attorney Baker can provide you with representation to help you understand how you should proceed during your case. Contact our Marble Falls DWI attorney at 325-216-2006 to set up a consultation today.

Sources:

https://statutes.capitol.texas.gov/Docs/TN/htm/TN.724.htm 

https://statutes.capitol.texas.gov/Docs/PE/htm/PE.49.htm