Before the Missouri v. McNeely decision was handed down in April 2013, blood tests only occurred on “no refusal weekends,” or under rare mandatory blood draw situations. Since about 2011, this was the norm in Harris County. But in the post-McNeely era, every day is now a “no refusal weekend.” Currently, blood warrants are both easily attainable and common practice every day and night in this area. So if you refuse a breath test, the police will most likely obtain a search warrant and take your blood instead. Without getting into a Constitutional debate over this procedure, let’s figure out what to do in case you find yourself in this situation.
1. Breath tests are easier to beat than blood tests. Assuming your lawyer cannot get breath or blood tests suppressed from evidence, and the jury will be able to see the results, it’s much easier to win cases with breath tests than blood tests.
- I estimate that the top 5% of trial lawyers out there can beat a breath test DWI where it comes into evidence.
- By contrast, I also believe that only the top 1% of trial attorneys can beat a DWI blood test that comes into evidence.
Both breath and blood testing have their problems, and neither is infallible; however, fewer trial attorneys really understand both the science underlying these procedures and the pitfalls. Additionally, the jurors and general population alike are prone to believe in blood over breath.
2. You should NOT always take a breath test. If your breath or blood test comes back over a 0.15 concentration, the case could be enhanced to a Class A misdemeanor (up to one year in jail and $4,000 fine) from a Class B misdemeanor (up to 180 days and $2000 fine). And penalties could fluctuate, even escalate, depending on the circumstances of your case.
- Anyone with a 0.15 and over will statutorily be required to install an ignition interlock system in their car.
- If you are eliminating alcohol and take a breath test, this would occur before they could take your blood. You could blow over 0.15, but bleed a lower number later.
- Remember, the actual alcohol concentration in your body at any given time is a dubious calculation that varies from individual to individual. So you can’t ever accurately calculate what you will blow or bleed and how close it will be to a 0.15.
When in doubt, always bet that you can win with all the evidence presented. The only time you should refuse a breath test is if you believe you are over a 0.15 and don’t want to deal with the immediate consequences of charge enhancement and an interlock device.
But, that being said, judges may discretionarily require such a system even with no blood score. Which means that once the blood score comes in, you still have to deal with all that charge enhancement. I still advise you take the breath test rather than let law enforcement get themselves a blood warrant; this is the easiest-to-beat approach.
3. Why else should I to submit to a breath test? The Intoxilyzer 5000EN only measures alcohol, not drugs. Which means that people under the influence of a substance other than alcohol will blow a 0.000 on the machine. The officer will then have to find a drug recognition evaluator (DRE) that puts you through a 14-step process and collects a urine test to determine if you are intoxicated by drugs, whether street drugs or a legal prescription. The entire DRE process is lacking in proper scientific authority. Remember that your bladder is the trash can of the body; anything in your urine is obviously not in your system anymore. A skilled DWI trial attorney knows the half-life of drugs and how long it takes for different substances to show in your urine – and at what concentrations.
4. With some cases, they won’t get a blood warrant. Cops are busy people, and they may not always want or be able to take the time to have a blood warrant issued when suspects refuse such a test. But just because it happens on occasion doesn’t mean you should ever bank on it – you may get pulled over by an officer who has no compunction whatsoever about doing what it takes to get that sample for testing. I have actually had several cases where the client consented to a blood test, made it all the way to the hospital, and then refused right before the nurse stuck them; however, it’s best to hedge your bets on them getting a warrant.
5. Should I ever submit to the standard field sobriety tests? Never. These tests are highly meticulous in the grading process and are designed for failure. Unless you are skilled in the administration of these tests and how law enforcers assess success, I would never recommend attempting them.
6. What should I tell an officer if I am pulled over? Politely tell the officer that you are refusing his test because you don’t feel as if you’ve done anything wrong. From there, you can decide whether or not to submit to a breath test or allow the cops to get a warrant for your blood in the event you are arrested. Mind your manners, as any hint of belligerence will work against you.
7. What would I do if I got pulled over? Personally, I wouldn’t get pulled over, since I take a taxi if I decide to consume alcohol. But in the hypothetical situation where I did get behind the wheel after a few drinks, I would refuse all standard field sobriety tests and go straight for the breath test. After all, it’s easier to beat that than blood! All throughout the process, I’d remain as polite and silent as possible.
And then I would hire the best DWI trial attorney I could afford. You absolutely get what you pay for in this field.
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