A breath test (also known as a "breathalyzer") is a test administered by police during a DWI stop. The test involves a piece of machinery that measures the blood alcohol content on your breath. This reading will inform the police if you are over the legal limit in Texas. You do have the right to refuse a breath test, however, it is important to understand that if you do so, you may face certain penalties. If you have already refused to take a breath test, it is important to understand that no matter what the circumstances were, there are ways to challenge breath test refusal in court and you can and should fight this charge.
What Happens When You Don't Take The Breath Test?
Anyone who operates with a state of Texas driver's license has agreed to operate under certain laws. One of these is "Implied Consent." Under the doctrine of implied consent, by operating a vehicle on the public roadways, you have agreed to submit to a breath test if you are stopped by police who have probable cause to conduct a DWI investigation. However, this does not mean that police can use force to compel you to take a breath test during a DWI stop.
If you do choose not to submit to a breath test, the police officer can place you under arrest. At this time, law enforcement is required to read (and provide to you in writing) statutory warning language that explains the legal consequences that you will face by failing to submit to a breath test. You will be informed that failure to submit to a breath test will be used as evidence against you in a DWI proceeding, and this will result in the loss of your driving privileges for a minimum of 180 days. You will also be informed that if you do chose to consent to the breath test, and the reading displays that you are over the legal limit, you will lose your driving privileges for a minimum of 90 days.
The law enforcement officer will then have you sign a statement that acknowledges that you were informed of the consequences of failing to take a breath test and that you chose to do so despite this. At this point, the police will confiscate your driver's license. You will be provided with a Notice of Suspension, which allows you to drive for a short period of time while the administrative licensing process to formally remove your license takes place.
Police can also apply for a search warrant at this time. A search warrant will give law enforcement the ability to collect a breath or blood sample from you. If the police do obtain a warrant, you must comply with the blood test.
What Do I Do If I Refuse a Breath Test?
If you were stopped for suspicion of DWI in the Dallas/Fort Worth area and you refused to take a breath test, the first thing to do is remain calm. You still have potential recourse. Many people refuse breath tests for a variety of reasons. The science behind obtaining an accurate reading from a breathalyzer machine is far less certain than some may believe.
A breath test must be performed properly in order to obtain a correct reading. In the chaos surrounding a DWI stop, the police may fail to administer the test properly. Additionally, breathalyzer machines must be calibrated and maintained according to certain standards. If the machine is not properly calibrated and/or maintained, the results may be compromised. Even if all conditions are ideal, medical conditions, such as diabetes, can cause certain changes in body chemistry which renders readings unreliable.
If you refused a breath test and your driver's license has been suspended, you have options but it is important that you act quickly. The first step is to obtain counsel. You need an experienced DWI attorney who can handle the criminal and administrative elements of a DWI. The "administrative side" refers to the process of suspending your driver's license, which is done in a separate proceeding from the criminal court process which will determine your ultimate sentence and corresponding punishment.
If your driver's license has been suspended due to a breath test refusal, you have 15 days to request a hearing to challenge this suspension. If you do not act within this period, you will lose the right to challenge the suspension of your license permanently. This is one of the main reasons to obtain legal counsel as quickly as you can. Your attorney will move swiftly to request a hearing.
At this administrative hearing, the state must prove that you refused a breath test (or that you were operating while intoxicated if a test did ultimately result). You face a 180-day suspension if the refusal was your first, but if this is a second refusal to take a breath test within a 10 year period, you could face a 2-year suspension of your driving privileges.
Dallas/Fort Worth Breath Test Refusal Legal Representation
Even if you've signed on the dotted line, your fate is not set in stone. You can, and you should, fight DWI charges even if you refused to take a breath test. Any time you interact with the police, your constitutional rights must be upheld continuously. If the police violated those rights in any way during the course of your DWI stop or arrest, we will challenge this. Additionally, the police must follow certain protocols in the way that they inform you of the consequences of your refusal to submit to a breath test. If they failed to do so at any stage, we will use this in mounting an aggressive defense.
If you have been arrested for driving while intoxicated or a related offense, contact Carl Ceder today. He will work hard to give you the best defense possible in your case. Though each case is unique, he strives to get your charges reduced or dismissed or to win you an acquittal at trial.