POLICE PATROL HEAVILY OVER THE 4TH OF JULY WEEKEND
If you are arrested for Driving While Intoxicated (DWI) this holiday weekend, you should know that the police are going to ask you to give them a sample of your breath or blood. My goal is to let you know what your rights are and what happens if you refuse to provide this sample.
IS REFUSING A SEPARATE CRIMINAL CHARGE?
The short answer to the question is NO, you do not have to agree to voluntarily provide a sample of your breath or blood after a DWI arrest. There is no separate criminal charge for refusing this request. However, there are significant side-consequences that you should know about before deciding to refuse to provide a sample.
FOUR MAIN CONSEQUENCES OF REFUSING
A Refusal can be Used Against you at Trial
First, under Texas law, by accepting a driver’s license, you have given “implied-consent” to provide officers with a sample of your breath or blood if they arrest you for DWI (see Tex. Trans. Code sect. 724.011). Although the State cannot charge you with an additional crime, the prosecutor can use the fact that you refused against you at trial as an indication of your guilt. This is true even if the police did not read you Miranda warnings.
A Refusal is Leverage Against you in Plea Negotiations
Second, the fact that the State can hold a refusal against you at trial is a powerful piece of evidence. The prosecutor will make the argument that you refused to provide a sample because you knew that you were intoxicated. Although there are ways to counter this argument, some juries find this argument convincing and the prosecutor knows it. This means that during plea negotiations the prosecutor might be likely to offer a lengthier term of probation, a lengthier jail term, or a higher fine just because she has your refusal as leverage.
Longer Driver’s License Suspensions for Refusing
Third, DPS will suspend your driver’s license for at least 180 days. This suspension period is double the 90 day suspension that you would receive if you agreed to provide a sample and your BAC came back over 0.08. You can contest this at an ALR hearing but those are rarely successful. Things get worse if you hold a Commercial Driver’s License. If you have a CDL and refuse to provide a sample after a DWI arrest, your CDL will be suspended for one year.
Lose an Easy Opportunity to Prove Innocence
Fourth, if you have had nothing to drink, then by refusing you give up an easy way to prove you are not guilty. Forensic analysis of a breath or blood sample is powerful evidence. This is why officers are so eager to get your consent to collect it. However, if your BAC returns as 0.00 and there are no drugs in your system, the prosecutor will not likely even file the case against you. This means no attorney’s fees, no criminal record, and no driver’s license suspension interfering with your life.
FIVE POTENTIAL UPSIDES OF REFUSING
Despite these consequences, there are reasons why it might be prudent to refuse to agree to give a sample of breath or blood.
Officers can Make Mistakes
First, by refusing to give a sample, you place the arresting officer in a position where they have to obtain a warrant from a judge to extract your blood. This process involves several steps and takes time. There are many mistakes that the officers can make during this process that could make any sample that they finally obtain inadmissible in Court. If the evidence is inadmissible due to police error, the prosecutor might dismiss your case.
Sobering Up
Second, time is on your side. The longer it takes officers to obtain a warrant and find someone to draw your blood, the more likely it is for you to metabolize any alcohol in your system. This means that the longer it takes for the police to obtain your blood, the more likely it is that you will sober up and have the test show a much lower BAC.
License Suspended Either Way
Third, if you do provide a sample that shows you had a BAC greater than 0.08, then DPS will suspend your driver’s license anyway. This suspension is set as 90 days instead of 180 as an incentive for you to cooperate . Depending on where you live or how you are situated, a driver’s license suspension might not be a very big deal to you. If this is the case, then perhaps refusing to cooperate won’t have much of an impact on your life.
Possibility for Occupational Driver’s License
Fourth, even if DPS does suspend your driver’s license and that is a big deal for you, Courts are likely to grant you an Occupational Driver’s License (ODL). An ODL allows you to drive to and from work so you don’t lose your income while awaiting a resolution to your case. An important note is that CDL holders will not be able to obtain a ODL to drive a commercial vehicle. CDL holders can petition to obtain an ODL to drive their personal vehicle. Also, if this is a second or higher DWI or you are facing a felony DWI, the Court will be less likely to grant you an ODL.
Impact of a Conviction on your Career
Fifth, a DWI conviction can have serious consequences for your career. This is especially true for commercial truck drivers, pilots, teachers, military members, and members of many other professions. If this is the case, then it might be best to make it hard for police to collect evidence against you. This is especially true if you think you might actually be intoxicated. Make the police work for their conviction. As I mentioned above, there are many delays that can occur and many ways all people involved in blood extraction and analysis can make mistakes. If any of these people make a mistake, your BAC could become inadmissible at trial. This does not happen in most cases, but if you might be facing a DWI conviction anyway, then it might be wise to make the State work for it.
CONCLUSION
You will have to decide whether to refuse or consent based on your unique personal situation. Refusal might be the best idea for some people but it might not be the wisest move for others. One thing to remember is that you will not have an attorney present to help you make this decision. If you ask for an attorney at the scene and then remain silent, the police will treat this silence as a refusal. You will not succeed in Court with the defense that you were denied an attorney at the scene. Therefore, you need to decide in advance what solution works best for you and I hope the discussion above will help you in forming your strategy in case you are ever in this unfortunate situation.