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Attorney at Law

1002 Rio Grande
Austin, Texas 78701

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If you are arrested for the offense of Driving While Intoxicated, you will be requested by a law enforcement officer to take a breath test.  On rare occasions, you may be requested to provide blood for a blood test.  You have the absolute right to refuse to take the breath or blood test (except if you were involved in a accident and someone has died or is likely to die from injuries resulting from the accident).  Your decision whether to take the test or not has the most serious ramifications.  The discussion below applies equally to breath tests and blood tests.

If you take the breath test and the results are under .10%, there is a possibility that the police will let you go home without filing charges.  However, there is no guarantee of this, and the County Attorney's Office has tried (and convicted!) Defendants of DWI where the results have been below .10%.

If you take the breath test and the results are a .10% or more, you definitely will be arrested.  In addition to the arrest, the Texas Department of Public Safety (DPS) will file a petition in front of an Administrative Law Judge to have your driver's license suspended for a period of 60 days.  (If your license is suspended, you are entitled to get an "Occupational Driver's License" which will allow you to drive to and from work and for driving which is essential to run your household).

If you refuse to take the breath test, then the police will have you perform a series of field sobriety (agility) tests at the station house.  These test will be recorded on video tape.  It has been my experience that no matter how well you do on these field sobriety tests, if you have refused to take the breath test, the police will arrest you and file formal charges.  Because of your refusal to take the breath test, DPS will file a petition to have your license suspended for 90 days.

The driver's license suspension proceeding run parallel to the criminal case.  The chances of preventing the 60 or 90 day suspension of your driver's license are very slim.  However, if you do win the suspension hearing, it is possible that it may help you get a more favorable disposition regarding the criminal charges.

So should you take the test or not.  First of all, if you find yourself in the position of being faced with this question, there is a good chance that you have been drinking.  If the police officer did not smell alcohol on your breath, he probably would not have brought you in for testing.  To the question of is the machine accurate, I must say it depends.  There are some problems both with the physical makeup of the machine as well as the inherent assumptions that underlie how the results are figured (most specifically the assumption that the percentage of alcohol in a person's breath exactly equals the percentage of alcohol in a person's blood - the machine makes no concession to the fact that an individual's particular physiology may cause the result to be off, in certain cases by up to 50%, either higher or lower).  Perhaps the most interesting thing to consider regarding its accuracy is to ask why the Austin Police Department and the Travis County Sheriff's Office, despite being required to do so by law, will refuse to make a video tape of you doing the field sobriety tests, if you have already taken and failed a breath test.  (The reason is that in too many instances, a person who failed the breath test looked reasonably sober on the video.)  Further, you must remember that if you take the test and fail, they will try to suspend your license for 60 days.  If you refuse to take the test, they will try to suspend your license for 90 days.  Thus your refusal will only result in a license suspension for 30 days more than if you fail, not much of a penalty, since you will have to get an occupational license in either instance.  As a result of your refusal to take the breath test, the police will make a video tape made of you performing the field sobriety tests.  If the tape looks good, that is, if a person watching it would believe that you hadn't lost the normal use of your mental and physical faculties (which is the standard for intoxication), the prosecutor may decide to make a plea offer which includes a disposition in a manner short of a DWI conviction.  If the prosecutor refuses to plea bargain down to a lesser offense, then the jury will have an opportunity to see the tape at your trial and get to decide for themselves.  And if the video tape shows you in bad condition, then there is an excellent chance that you would have failed the breath test as well.

There are only very limited circumstance under which I advise taking the breath test.  Those circumstance would be if you had a maximum of 3 drinks in the 3 or 4 hours prior to the test (and not all clustered in the past hour), AND there were believable witnesses who had seen the person drink those drinks during that time period and who would be able to explain to the authorities how it was that they know for sure exactly what you had to drink.

Only under those circumstances would I recommend taking the breath test.  (I have only recommended this once in my 12 years of defense practice).  That way, if the person passes the test, they may be allowed to go home, but if they fail, they would have witnesses who could testify that the person was definitely sober, and hopefully prove the machine is wrong.  And the consent to the breath test should only come AFTER an initial refusal, so that a video tape is made of you performing the field sobriety tests.  (Generally at the end of video taping of the field sobriety tests, the officer will give you one last chance to take the breath test.)

One last note.  You should be aware, that in spite of the fact that the police officer, upon arresting you out at the scene, will tell you that you have the right to an attorney present during questioning, the Courts have ruled that the police do not have to allow you to call an attorney prior to your making a decision on whether to take the breath test or not.  Your request to call your attorney will probably be denied, so you will be on your own.  The police officer will once again read you your constitutional rights immediately before asking you to do the field sobriety tests on tape back at the station house.  While I advise my clients to perform the field sobriety tests as requested by the officer, I also advise them to immediately request to call their attorney (even though the request will probably be denied) and decline to answer any questions asked by the officer, other than providing their name, address and similar information asked during the booking process.  Questions regarding how much you had to drink, where you had been drinking, what time did you start drinking, what time is it now, and do you feel that you have had to much to drink to be driving should be answered with polite "I respectfully decline to answer that question until I have an opportunity to speak with my attorney."

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