I am often asked about the breath test. Having practiced criminal law for years, negotiated thousands of cases, and tried all manner of driving while intoxicated cases from misdemeanor to felony, I have heard the question many times.
Should I blow into the police machine? When should I refuse to give a sample of my breath if asked? Will DPS suspend my license if I don’t blow? Can’t the police take my blood if I don’t blow?
The law about the breath test changes often. The Texas legislature meets every two years and it seems they can’t resist tinkering with the law, especially as it relates to breath and blood tests in DWI cases. This past legislative session, the folks down in the capitol passed a new law that took effect September 1, 2011.
Even though the law changed some six months ago, few people are aware of this change or how it affects DWI cases in Texas. But prosecutors are well aware of the change and those in Williamson County, Austin, and throughout Central Texas are well prepared to use the new law against you.
This law has made the decision on whether or not to consent to giving a sample of your breath much more simple. Now, in most cases, breathing into the police’s breath test machine is a very bad idea.
What if you drove your car into the concrete median on I-35 coming home from a party in only your underwear, the officer saw you get out of the car holding a bottle of Jim Beam, and you promptly threw up all over the officer when he approached you?
What if you rear-ended the police car, got out and urinated on the police officer’s shoes, and tried to take a swig of the officer’s pen when he tried to give you the eye test?
Certainly, you’ll want to hire a skilled DWI Defense Attorney to represent you. And that attorney will certainly need skill and experience to properly defend you given those facts.
Yet, even in those circumstances, taking the breath test could harm you more than it would help you.
Why? What harm will taking the breath test due with so much other evidence of intoxication?
The new law that took effect, gives most people accused of driving while intoxicated a very strong reason to avoid submitting to the breath test.
I should caution here that I am not advocating any type of physical resistance. Anyone with any amount of common sense should realize that trying to physically resist a police officer armed with a gun, badge, Taser, baton, pepper spray, the ability to call for back up officers and endless resources is a very, very poor choice. Physically resist and you’ll only get hurt.
I am simply advocating the firm, polite refusal to take the breath test.
To understand how taking the breath test could make the above situations, and many others, significantly worse, you must first understand how first offense and second offense driving while intoxicated charges are punished in Texas.
Texas law decrees that a first time DWI is a class B misdemeanor punishable by up to 180 days in jail and/or a $2000 fine. This is the maximum punishment allowable by Texas law for a first time DWI.
Texas law decrees that a second time driving while intoxicated offense is a Class A misdemeanor, punishable by up to 365 days in jail and/or a $4000 fine. The law also provides that both as a condition of bonding out of jail and a condition of probation, if the accused is found guilty and placed on probation, the court must impose the following requirement: the person must pay to have installed, maintained, an repaired, an ignition interlock device on any car to he or she owns or to which he or she has access.
An ignition interlock is a device that requires you to blow into a tube to start and continue operating your vehicle. If you have any detectable alcohol in your system, the car will not start, or will turn off if already in motion. The company monitoring the device will know of the violation immediately and will notify the prosecutor, court, and probation officer.
So the range of punishment and the ignition interlock are two of the big differences between a DWI 1st and a DWI 2nd.
And herein lies the reason to consider refusing the breath test. If you are arrested for driving while intoxicated first offense, and take the breath test and the machine says your Blood Alcohol Concentration is 0.150 or more, the law allows the prosecutors to charge you with a Class A misdemeanor and impose the ignition interlock requirement, just as they would if you had a previous conviction for DWI and were charged with DWI 2nd.
So anytime you consent to breath into the police breath test machine you give the State the option to charge you as a repeat offender if that machine prints out a sheet of paper with a number 0.150 or greater. The possible punishment prosecutors may seek against you doubles simply based on the numbers reached by a machine.
Essentially then, the law imposes a penalty for cooperating with police and complying by giving a sample of your breath.
It seems odd that Texas law provides an incentive to refuse the breath test, but it does. And you should be aware of it.