If you are stopped for driving while intoxicated (DWI), can you refuse chemical testing?
Texas's "implied consent" law requires all drivers lawfully arrested for a DWI to submit to chemical testing to determine blood alcohol concentration (BAC) or the presence of drugs in the driver's system. (Texas used the term "DWI" instead of "DUI".) For an arrest to be lawful, the officer who stops you must have probable cause to believe you've been driving under the influence of alcohol or drugs.
The officer gets to decide which type of test—blood or breath—you must take. But once you submit to the officer's test, you have the right to have a blood test taken within two hours of your arrest by a medical professional of your choice (and at your own expense).
Normally, an officer cannot force you to take a test: If you decide not to submit to testing, you'll face consequences, but the officer must respect your choice. However, BAC testing mandatory if you:
- are in an accident involving serious injury or death, or
- you have a prior conviction for intoxication assault, intoxication manslaughter, two prior DWI convictions, or one prior DWI conviction with a child in the car.
An arresting officer is required by law to explain the consequences of refusing a test—that you'll be fined, lose your license, and face jail time if convicted of a DWI. The officer must also explain you don't have the right to speak to an attorney prior to taking the test and that a test refusal can be used against you in court.
Implied Consent and Pre-Arrest Testing
Generally, the implied consent law doesn't require drivers to submit to chemical test prior to a lawful arrest. However, to establish probable cause to make an arrest, an officer might ask you to take a voluntary "preliminary alcohol screening" (PAS) test. A PAS test is typically administered with a handheld breath test device (often called a "breathalyzer") at the roadside.
Consequences of Refusing Post-Arrest Testing
The penalties for refusing to take a chemical test start at a 180-day license suspension. You could lose your license for two years if you refuse a test you've had at least one an alcohol or drug-related "enforcement contact" within the last ten years. DWI convictions, BAC test refusals, and failed BAC tests all counts are prior enforcement contacts.
Should You Refuse to Take a Mandatory Chemical Test?
The wisdom of refusing a post-arrest chemical test depends on the circumstances. And refusal may not help you avoid a conviction—you can be found guilty even without test results. In fact, the prosecution can argue to a jury that your refusal shows consciousness of guilt—that you refused to test because you knew you were intoxicated.
(Check out our blood alcohol content chart for an estimate of the number of drinks it takes to get to the .08% legal limit.)
Get Help With Your DWI
If you've been arrested for DWI in Texas or any other state, get help from an experienced DWI attorney. A DWI conviction—especially one involving physical injuries or repeat offenses—carries serious consequences. So your best bet is to find an attorney who knows the law and your local court system.
I Was Arrested and Charged With DUI, Does This Mean I Am Guilty of DUI? What Are the Legal Defenses for DUI?
Just because you were charged with a DUI in Gainesville or Alachua County does not mean you are guilty of DUI. There are a number of legal challenges or defenses that can result in your case being dismissed by the judge or prosecutor.
Here are the top five legal challenges or defenses to a DUI:
- Did the police officer have a lawful reason to stop you? This is called Probable Cause. The officer must have a legal reason to pull you over such as: speeding, careless driving, or crossing into the other lane to name a few.
Carey Meldon Tip: Just because the officer said there was probable cause to pull you over, does not necessarily make it true. You are entitled to an independent evaluation by a judge. Many cases have been completely dismissed because it was proven that the officer did not have a legal basis to stop you in the first place.
Did the police officer have the right to make a stop in the location where he or she stopped you? Every police officer has a certain Jurisdiction, the place where they are authorized to act as a law enforcement officer. For example, an officer from Miami cannot come to Gainesville and make an arrest; it would be outside their jurisdiction.
Field Sobriety Testing Conditions: Were the conditions under which the Field Sobriety Tests (FST) given, conducive to proper testing? The purpose of the FST is to prove that a person is impaired. However, these “tests” have been proven to be unreliable even if given under perfect conditions.
Carey Meldon Tip: It is important to document the conditions under which your FST were preformed. Such as ground levelness, lighting, ground surface, weather conditions, etc. If it can be shown that the conditions were less than ideal, it means that the tests are not reliable evidence.
Carey Meldon Tip: This is another reason why it is important to hire local and experienced legal representation ASAP, so they can document the conditions as road conditions can change.
- Can the results of the breath test (BT) be used as evidence against you; Breath Test Admissibility. The purpose of the BT is to measure a person’s blood alcohol content at the time they were driving. This device (CMI Intoxilyzer 8000) is supposed to be able to do this by converting the amount of alcohol in your breath to the blood alcohol concentration in your body. However, there are many reasons that the breath test results may be kept out of court, such as, if it can be shown that the breath test machine was not working properly or that the breath test was not administered according to the rules. Read my library article, CMI Intoxilyzer 8000 Breath Testing Machine Information & Problems with it for DUI police arrests in Gainesville Florida, attorney attorney defenses
Carey Meldon Tip: There are many problems associated with breath testing and breath testing machines, and in fact the machines have never been scientifically proven to be completely accurate.
Carey Meldon Tip: Hire an experienced Gainesville DUI attorney that is up to date on the technology being used and the top, cutting edge, legal defenses. This will greatly increase your chances of keeping the breath testing results from being admitted in court, which could lead to a not guilty verdict for DUI or a plea to a lesser charge.
- The quality of the police officer and their investigation: There are many issues that a skilled DUI attorney will evaluate when researching the officer’s experience, history and the quality of their reporting or investigation.
Carey Meldon Tip: This is another reason to hire a local and experienced DUI team to represent you. Knowing the police officers and their histories is valuable information in helping win a DUI case.
Call today for help. 800-373-8000. Consultations are free.
Remember, the only sure way of avoiding the lifelong consequences of a DUI conviction is to not drink and drive!
However, if it is too late, do not make another mistake – hire an experienced DUI/DWI attorney to represent you and do it ASAP, don’t wait! You can contact us today at 800-373-8000.
The experienced Trial Attorneys at Meldon Law are dedicated to preserving the rights of the accused.
Pictured above – Ian Pickens, Carey Meldon, Jeffrey Meldon, and Kenneth Ferguson, a combined 60 years of legal experience representing people in Florida accused of DUI/DWI and other criminal charges. They wrote the DUI Guide for the 8th Circuit – Ways to Possibly Avoid a DUI Charge or Conviction. Request your free copy today.
This free no obligation book, written by a team of experienced DUI defense criminal trial attorneys, gives insight into what a DUI charge is, ways the State can prove the charge, and possible legal defenses.
Being charged and convicted of DUI is best avoided by not drinking and driving! This book also gives information on what it takes to be over the legal limit, how alcohol affects the body, plus much, much more!
By Meldon Law | Posted on May 21, 2019
Austin-American Statesman EDITORIAL
Embarrassing combination: politicians, DWI charges
Sunday, August 15, 2004
Drinking and driving is an occupational hazard of the political class, as numerous local and state officeholders over the years can attest.
The latest casualty is Travis County Judge Sam Biscoe, charged late last week with drunken driving after being stopped while weaving on Manor Road in East Austin. Austin police said Biscoe failed a field sobriety test and refused to take a blood alcohol test.
Biscoe admitted to drinking beer at a fund-raiser in East Austin and having drinks with a friend at another establishment afterward. He says he did not feel intoxicated and suggested that medication he takes for diabetes and high blood pressure might have caused him to fail the field test. That determination will be left up to the prosecutor and the courts to decide.
Biscoe's embarrassment follows the sad downfall of former Williamson County Sheriff John Maspero, arrested twice last week, once on a charge of public intoxication. Maspero resigned his position as sheriff in December after being charged with public intoxication while walking home from an event in Georgetown.
These and other high-profile cases of alcohol-related incidents should help illustrate the dangers of driving under the influence of alcohol. It is a hazardous, sometimes deadly, custom that can wreck cars, lives and careers.
Maspero had already, as he put it, hit bottom when he fell a little further still. Biscoe, 57, has placed his long career in public service in jeopardy, though he says he will not resign his office. "Will I drink less in the future?" asked Biscoe, who has been county judge for six years and was a county commissioner for a decade before that. "Yes, if at all."
Drunken driving is a serious issue of long standing in this community. In November, Mack Martinez III, who was the Travis County attorney's first assistant, was charged with drunken driving after hitting a guardrail on the Interstate 35 frontage road. He resigned, pleaded no contest, was fined and served five days in jail. He has since returned to the county attorney's office.
During Thanksgiving week in 2001, state Sen. Gonzalo Barrientos of Austin was charged with drunken driving after weaving along Congress Avenue. He pleaded no contest, apologized and served a year's probation. His career survived but he drew a stiff challenge from Republicans at the next election.
In 1999, longtime Travis County Court-at-Law Judge Wilfred Aguilar was arrested on drunken driving charges in Williamson County. He resigned his office and pleaded no contest. Aguilar is now in private practice as an attorney.
Alcohol can be a perilous habit for anyone, but elected officials pay a particularly high price when busted in alcohol-related incidents. Just ask President Bush, who was embarrassed when his 1976 drunken driving arrest was exposed during the 2000 presidential campaign.
These highly embarrassing episodes should be instructive for everyone: Don't drink and drive. It just isn't worth it.
[Oh yeah, and they all refused to follow the law and provide evidence showing their guilt.]
Defending a DWI in Texas
Top Defenses to Driving While Intoxicated Charges in Texas
As in all criminal cases, a person charged with Driving While Intoxicated (DWI) is presumed innocent. The State has the burden to prove the defendant guilty beyond a reasonable doubt. The person charged must be acquitted if the State fails to meet its burden. An effective defense will protect the defendant’s presumption of innocence and prevent the State from meeting its burden.
What the State Must Prove?
An effective DWI defense strategy will attack the prosecution’s case on multiple fronts, with the goal of preserving the defendant’s presumption of innocence. A person may be convicted only when the State offers admissible evidence to rebut the presumption of the defendant’s innocence. To be found guilty of DWI, the State must convince a jury that the
(1) defendant operated a motor vehicle,
(2) in a public place while either
(3) under the influence of intoxicating liquor or with a .08 or greater blood alcohol content (BAC).
A defendant must be acquitted if the State cannot, or fails to, prove the defendant guilty of each of the three elements of DWI. A person may not be tried for the crime again if they were acquitted after trial. In other words, the State does not get a second bite at the apple.
CHALLENGING THE LEGALITY OF THE STOP ITSELF
The defense has ample opportunity to attack the State’s case both pre-trial and during trial. During the pre-trial stage, the defense can contest the reason the officer stopped you while driving. This contest is called a Motion to Suppress Evidence. At a Motion to Suppress Evidence, the State has the burden to prove the officer did not violate the driver’s constitutional protections against unreasonable searches and seizures. Thus, the State must prove the officer had a specific and articulable reason or reasons to stop the car and order the driver out. The State must also prove that any statements the driver made did not violate the Miranda warnings and were made knowingly and voluntarily without being coerced. A judge will order every piece evidence, such as observations of the police, video recording of the stop and booking, portable breath test (PBT) results, field sobriety tests (FST), statements made by the driver, and breathalyzer tests (BT) or refusal suppressed if the police violated the driver’s constitutional rights. The State is prohibited from using suppressed evidence at trial. This means the State will not have any evidence to produce at trial, resulting in a dismissal of the charges.
CHALLENGING THE TESTS
The defense can also attack the State’s scientific evidence as well. To be admissible, evidence such as Horizontal Gaze Nystagmus (HGN) PBT, BT, and blood tests require the State to call an expert witness to testify. The defense attacks the evidence on the basis that the testing is scientifically unreliable and should not be admitted in evidence at trial. The defense also attacks the expert personally, arguing that the witness lacks sufficient knowledge, training, and experience to offer a scientific opinion at trial. These same attacks should also be made during the trial; however it is beneficial to the defendant to attack pre-trial. A pre-trial contest of the scientific evidence, even if unsuccessful, gives the defense a great advantage to learn about the evidence in advance of trial, providing an opportunity to fashion a winning defense.
The State’s scientific evidence may be unreliable, and therefore inadmissible, for three reasons.
(1) The test may be scientifically unreliable. Defendants have successfully argued that HGN and PBT tests are scientifically unreliable and should be not admitted at trial.
(2) Errors made by the person administering and interpreting the tests are frequently a successful avenue of attack. For instance, a judge may find the HGN test admissible because it is scientifically reliable but the person administering the test failed to follow the correct procedure or mistakenly interpreted the results.
(3) Any machines used such as the PBT or BT may yield a damning result but may have been incorrectly calibrated. The use of defense experts is critical here. An expert retained by the defense can help question the reliability of the HGN, PBT, BT, and blood tests pre-trial. Also, the defense expert can testify for the defense at trial to create doubt that the evidence the State offered lacks scientific reliability and the State’s expert witness lacks credibility. The aim is to give the jury a reason to disregard or downplay the significance of the State’s scientific evidence. Additionally, a defense expert might be able to testify that the driver’s BAC was lower at the time the officer stopped the driver, casting doubt on the accuracy of the BT reading.
The police officer’s testimony is grounds for attack as well. A trial in which an officer does not testify well or hold up under cross-examination by the defense often results in an acquittal for the defendant. Police officers, for as much good as they do, are human. The accuracy of the officer’s memory, testimony inconsistent with what was written in the police report, and any bias the officer may have are all methods used to attack the officer’s credibility. Exploiting these issues at trial may help secure an acquittal, because the jury might not be convinced by an officer’s testimony that is biased or an officer who testifies to observations made which were not in the police report.
The arresting officer’s observations during arrest must be attacked. The officer will testify as to observations of smell of alcohol, bloodshot and watery eyes, slurred speech, poor driving and poor performance on the FSTs. On direct examination, the evidence will sound overwhelming. A good cross examination will open substantial holes in the officer’s testimony. This is where the best defense lies. The officer may have been trained in the academy to administer FSTs with a particular method but may not have followed the training and administered the FSTs incorrectly. The manner in which the FSTs were administered might have been unfair. For instance, the cruiser’s lights might have been in the driver’s eyes, the road might have been uneven, the officer may not have explained the test well or accurately, or the driver may have had an injury preventing successful completion of the tests. The driver might have performed well on the tests by following directions but was not perfect according to the officer. The results on FSTs, to a large extent, are subjective. A good thorough cross examination will demonstrate to a jury that the FSTs should not be given as much weight as the State argues.
A winning defense strategy in a DWI case will explore many areas. Since every case is different, an experienced DWI attorney will explore all of the avenues discussed above in defending a case.
Consequences of Breath Test Refusal and Failure- Massachusetts
If you “fail” the breath test, meaning your blood alcohol concentration was greater than .08 (unless under 21, in which case the limit is .02), your license will be suspended for 30 days.
If you were arrested for OUI/DUI/DWI and refused to take the breath test, the Massachusetts RMV will suspend your license immediately, completely independent of what happens in your criminal case. The breath test refusal suspension period will based upon 2) whether you are over 21 years old, and b) whether you have prior OUI/DUI/DWI offenses.
- BT Refusal- 1st offense: 180 days (unless under 21, see below)
- BT Refusal- 2nd offense: 3 years
- BT Refusal- 3rd offense: 5 years
- BT Refusal- 4th offense: Lifetime suspension
The RMV suspension for a breath test refusal will start BEFORE any license suspension from the court for your case begins. In other words, the suspensions run consecutive, or one after the other.
For example, if you refused the breath test upon your arrest for a 2nd-offense OUI charge, you face an automatic 3 year license loss from the RMV. If convicted of the offense in court, you face an ADDITIONAL 2 year license loss, for a total of a 5 year license loss. You are not eligible to apply for a hardship license for at least 1 year into the 2 year license loss from the court. Since that 2 year license loss does not start until after the 3 year breath test refusal suspension, you cannot apply for a hardship license until 4 years into that 5 year total suspension. Further, in order to apply for your hardship after 4 years, or for your full license after the 5 year suspension, you must first install the interlock ignition device in your car before consideration.
- If you are under 21 years old, a breath test “failure” is any reading above a .02 (which can be less than one drink), also resulting in a 30 day license suspension. In addition, your license will be suspended for 180 days under the Junior Operator Law.** This 180 day JOL suspension may be waived by showing proof of entry into an alcohol education program.
- If you are under 21 years old and refuse the breath test on an OUI-1st offense, your license will be suspended for 3 years, plus the 180 day suspension under the Junior Operator Law.** The breath test refusal suspension period for 2nd and subsequent offenses will be the same as for adults 21 and over, with the additional 180 days under the Junior Operator Law.**
- If your case was dismissed or you were found Not Guilty and you are under 21, your license will still be suspended for 180 days under the Junior Operator Law.** In order to have this 180 day suspension waived, you must enroll in a Driver’s Alcohol Education Program.
- If you plead guilty, receive a CWOF or are found guilty at trial, and you are under 21, your license will be suspended for 210 days for that finding. This 210 day suspension begins after all other suspensions (30 days for breath test failure OR 3 years for breath test refusal, AND 180 days under Junior Operator Law.** The 180 day suspension may be waived upon enrollment in a Driver’s Alcohol Education Program).
** If you are under 18 years old, the 180 day suspension under the Junior Operator Law becomes 1 year. 180 days of that 1 year suspension may be waived by enrolling in the Driver’s Alcohol Education Program.
Contact my office if you've been charged with a Massachusetts OUI or any other criminal offense. I am available 24 hours a day, 7 days a week, for your free initial phone consultation.Urbelis Law, LLC
1 State St #200
Boston, MA 02109
Phone: (617) 830-2188
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