If I am pulled over for a DWI, can I refuse to blow?
The short answer is: yes. Refusing to blow into a breathalyzer is well-within your rights and does not mean that you “must be guilty.”
Legally, if you are pulled over, you are only required to provide the police with the information listed on your license, your insurance details, and your social security number. Other than these pieces of information, you should politely refuse to give the police anything else they can use to build a case against you. This includes answering questions about where you have been, where you are going, whether or not you have been drinking, and even submitting to any field sobriety tests.
In fact, not only can you refuse, you should.
That’s the short answer, but the more complete answer involves a lot more information. Read on for a full explanation of your rights if you are pulled over in Texas for a DWI.
What About “No Refusal” Laws?
What started out as “No Refusal Weekends” have turned, in many counties, into a year-round policy. In these counties, refusing to blow will simply cause the police to get a warrant for a blood draw.
However, it’s important to understand that you are not required to blow into the handheld breathalyzer device, only the desktop one located at the station. In fact, the evidence provided by the portable devices is not even admissible in court.
It’s also important to note that “No Refusal” only applies to blood/breath tests, not to other Standardized Field Sobriety Tests. You should always refuse to perform the field sobriety tests.
Consequences of Refusing to Blow
In those counties with a “No Refusal” policy, refusing to blow will mean you will be arrested and brought into the station for a forced blood draw. For those Texas counties that strictly enforce “No Refusal,” the cops will be able to call a judge any time of day or night to obtain a warrant for a sample of your blood.
You should verbally make it clear that you do not consent to the blood draw, but you should know that resisting the police will only cause them to hold you down and forcibly draw your blood.
Once you have been arrested for a DWI, the police will start the license suspension process. This is automatic, but your lawyer can file an appeal for this, which will put the license suspension on hold until the appeal hearing.
You should hire an attorney as soon as possible after your arrest (they can even act as your bail bondsman) so they can start working on your license suspension and DWI charge.
Why You Should Refuse to Blow Anyway
Despite the consequences of refusing to blow, the DWI Dudes suggest that you refuse to blow anyway. If you provide a breath/blood sample or perform any of the field sobriety tests, the police will have evidence that they can use against you. Why would you want to help the state prosecute you?
Furthermore, the handheld breathalyzer device is not as reliable as the desktop device that you will told to blow into at the station after your arrest. If you end up having to provide the police with some form of evidence under Texas’ Implied Consent law, you don’t want to provide them with evidence from an unreliable source.
But this doesn’t mean that the desktop breathalyzer machine is infallible.
Contrary to popular belief, breathalyzers don’t test for the presence of alcohol. What they actually test for is any chemical containing the methyl group in its molecular structure, and there are many chemical compounds other than alcohol that fit this mold. If you are a smoker, diabetic with low blood sugar, or even if you painted a room recently, your breath sample may result in a false positive.
“Okay,” you might be saying, “But it’s okay to blow if I know I’m sober, right?” That’s not necessarily the case. Depending on your circumstances (and the officer who pulled you over) you can blow under the legal limit and still be charged with a DWI.
Even if your blood sample tested over the legal limit, there are ways to defend against your blood alcohol test results. There are certain rules and regulations that must be followed for storing your sample, testing your sample, and calibrating the machine.
Even though refusing to blow may result in a forced blood draw and suspension of your license, we still suggest that you refuse to blow AND make it clear that you are not consenting to the forced blood draw.
While there are many counties where “No Refusal” is a way of life, there are still some counties that do not implement these policies. Providing a breath or blood sample to seem that you are “cooperating” with law enforcement is just providing them with more evidence that they can use against you in court.
It is important that you contact an experienced DWI attorney, such as the DWI Dudes, as soon as possible after your arrest. A qualified DWI attorney can bond you out of jail, halt your license suspension, and defend you against any and all DWI charges the State throws your way.
Don’t just trust any DWI attorney to keep you out of jail. Choose one who has dedicated his practice to studying, training, and defending all things DWI.