Being pulled over for DWI and deciding what to do is tricky. There are many decisions with huge consequences for your freedom and reputation that you must make when the officer approaches you. Do I answer any questions? Do I attempt any of the sobriety tests? Do I take the breathalyzer or blood test. Many attorneys attempt to answer these questions based on outdated reasoning. The choices are all bad ones. You should not take the Texas sobriety tests, breathalyzer, or the blood test.
You will be asked to take all kinds of test during a traffic stop, including a breath test, and a blood test, and Texas Field Sobriety Tests. Understand these tests are set up for you to fail. They are often administered improperly, which is not to your benefit. Instead it is better to choose not to take any of the tests until you speak with a lawyer. The police will ask you if you are refusing the tests. You are not refusing them. You only want to speak with a lawyer before you make your choice. Once you speak with a lawyer, you can choose. Remember, it’s always better to choose than refuse.
If you don’t understand Texas drinking laws before you face your DWI first offense, not knowing whether or not to take these tests can be confusing and scary. This is understandable considering not knowing the right course of action can also put you in a difficult situation legally and personally. This is why I always advise people to talk to a lawyer before you choose what to do. The officer most likely will not allow you to call a lawyer, but you are not refusing. You are only telling the officer that before you can make a choice as to what to do, you must speak with a lawyer.
Know before you go: Even though we are discussing the tests and your options, the best thing for anyone to do is to not drink and drive. We all occasionally make mistakes, and when that happens, it is best to be well informed and prepared. So, before you head out for your next night on the town, know why you should refuse the breath test, blood test, and the Texas Field Sobriety Tests. Also learn why it is better for you to wait and see if the officer is able to get a blood warrant instead of choosing to take a test.
You might still be wondering why you should refuse these tests. Let me educate you as if you did not know that both the breathalyzer and blood test were bad choices. You go out and are pulled over after dinner and a few drinks, and you think you should follow the infamous “do not blow” rule. You’re not sure if your blood alcohol content (BAC) is above the legal limit of 0.08%. Your head begins spinning with questions such as, “What do I do?” “Did I have too much?” “, “Is DWI a felony?” or “What to do after a DWI?”. The officer removes you from your vehicle and then asks you the ultimate question “Will you take a breath test?”
Your mind starts racing and questions start popping in your head. What should you do? Blow? Not blow? Do I take the test or do I refuse it? What happens if I refuse? The answer is the same as you may have heard or seen on billboards: “Do not blow.” I tell everyone they need to “know before they blow”. The only way for you to “know before you blow” is to call a lawyer. Tell the officer that before you can make a decision on whether or not to blow, you have to speak with a lawyer. You have a choice to make. Blow or not blow. You want advice before you make that choice. You want advice before you choose. Without advice, you are unable to make that choice. You are not refusing, you only want legal advice before choosing. Breathalyzer tests can be notoriously inaccurate. The length of the blow can affect the result, body temperature can affect the result, breath temperature can affect the result, and even radio frequency from police radios and cell phones can affect the result. Why would you want to blow into a machine you know nothing about only to find out later the police officers radio and cell phone could affect the result?
There also is a 15-minute observation period that must be satisfied. Not all police departments video breath tests and there is no evidence, other than what an officer says, to prove this waiting period was properly administered. When an officer does not administer a test properly, that issue can be addressed in court. But you are now fighting police error, error which the police never want to admit.
If you refuse a breath test, you will then be asked for a blood test. Now what. Do I refuse that too? Again, you are not refusing. You need to speak to a lawyer before you make a choice. You have a choice to make and you want to make an educated decision. Many people believe that blood tests are flawless and only report the truth. That is far from accurate. There are many problems with blood testing that most lawyers do not know about. The police do not know about the problems, nor do they really care. Furthermore, your blood can also be tested for drugs. If you have been using prescriptions or taking any illegal drugs, that can be discovered.
At this point, it’s probably obvious that you shouldn’t agree to a blood test either and insist that the police get a blood warrant in order to get your blood. The law requires a warrant at this point for the police to be able to get your blood. By forcing the police to get a warrant, you not only give yourself a little bit of time to sober up, but you’re also completely within your rights.
Remember: the police might try to intimidate you into doing what they want, but it’s illegal for a police officer to make you to take a sobriety test without your permission.
Hopefully you see the question of a breathalyzer vs. a blood test as a dead end, but most readers may notice there’s still one test we haven’t mentioned: the Texas Field Sobriety Test. Yes, it’s true that an old man on Reno 911 danced his way past a sobriety test, and you are most likely way smarter than him. However, you’ll find the reality much less humorous.
It’s quite likely that a police officer may ask you to take a Texas Field Sobriety Test. Don’t be fooled, it’s possible to fail this test even when you’re completely sober. We would know, because our team is among the very few DWI law firms certified as field sobriety test instructors for Texas law enforcement officers. Sobriety tests are designed with bias to the officer and designed for you to fail. So, it’s likely in your best interest to invoke your rights and politely choose not to take the field sobriety test.
The above considered, let’s look at what happens when you refuse everything: the breathalyzer, blood test, and any other test the officer wants you to take. It’s important to level your expectations—refusing everything does not send you automatically riding off into the sunset. There’s still a difficult road ahead in defending your freedom. However, it will be a road that could have little or no criminal evidence against you.
Here are a few things you should be prepared for as you fight for freedom. The Texas Implied Consent Law states a driver who is arrested on suspicion of DWI has implicitly consented to having their blood or breath tested. If you choose not to consent, the police may take this refusal as probable cause and arrest you on suspicion of DWI.
Once this happens, the police may immediately take away your license, even if you’re not guilty. If you’ve been charged multiple DWI offenses within 10 years, your license will be suspended for at least 2 years (180 days for first-time DWI offenders). However, it may be possible to attain an occupational driver’s license, which will enable you to do things like drive to work, get groceries, and pick up your kids.
As you can see, DWI charges are complex, but learning the implications of your options could benefit you. Maybe you started this article wondering, “The breathalyzer vs. blood test: which one should I take?” We hope this article has helped you realize the question you should be asking is, “Who can I trust to not stop fighting for my freedom?”
Whether you decided to blow, bleed, walk the line, or refuse, only the best defense lawyer will know how to provide you achieve the best outcome possible. Doug Wilder and the Wilder Law Firm team have 20 plus years of criminal law experience, including time as a former chief prosecutor, on their side when preparing a creative defense strategy for your case.
We know exactly which actions to take, no matter the difficulty of your case, and you’ll have our personal attention every step of the way. If you need a DWI attorney in Dallas to defend your freedom, contact Wilder Law Firm online or at and schedule a free consultation today.