Law Office of
Rhett Braniff

Can I refuse a breath or blood test?

The answer to this question is a firm no, and it’s always going to be no. Voluntarily giving a breath or blood test is a big no-no. Even if officers have a warrant and try to force you into a blood test, you shouldn’t agree to a breath or blood test, even if the police threaten you. In fact, it’s better to turn down all tests, including the roadside field sobriety test. You have the right to refuse any test and deny providing any evidence that could incriminate you, and that right can’t be taken away. Even though officers might make it seem like you don’t have a choice, you actually do.

There are three reasons why you should never agree to a breath or blood test. First and foremost, you could end up providing incriminating evidence in a serious DWI charge. Clients often think their breath or blood will be under the legal limit, only to find out it’s much higher, handing valuable evidence over to the state. You have the right to avoid self-incrimination, so don’t consent to a breath sample and refuse to perform roadside field sobriety tests. Sometimes, the police might get a warrant to compel a blood draw, but don’t give it to them voluntarily. Make them go through the hoops to get a warrant so that we have the option of challenging the blood draw in court.

Moreover, how much trust can you place in a breath test machine? Do you want to give a breath sample to a machine that often has erratic maintenance and a poor track record of providing accurate results? Do you know the maintenance history of the machine sitting in the basement of the jail? Can you trust it?

Secondly, refusing to provide a breath or blood test won’t help your case. By the time the police are asking for a test, they’ve already decided to arrest you, and nothing you say or do at that point will change that. Even if you blow a 0.00, you’re still getting arrested. If you provide blood, you’ll have to wait months for the results, and in the meantime, you’ll be arrested and charged with DWI. Regardless of your breath sample, you’ll have to bond out, get your car impounded, and fight your case in court. Texas allows DWI cases to be prosecuted in two ways: 1) under a presumptive standard of intoxication with a blood or breath test above the legal limit, or 2) the state can try to prove that you lost the “normal use of your mental and physical faculties,” regardless of what your breath or blood showed. In other words, you can blow under the legal limit and still be prosecuted for DWI under the legal theory that you lost normal use of your physical or mental faculties. Given that providing a breath test under the limit won’t prevent you from being arrested or prosecuted for DWI, why would you ever offer to give them a sample?

Lastly, you might think giving a sample is worthwhile because your license could be suspended for refusing to provide a breath sample. While it’s true that your license will be suspended, it’s also true that your license will be suspended if you provide a breath test over the legal limit. Additionally, losing your license is one of the less significant parts of a DWI case. Generally speaking, within days of your license being suspended, our office will be able to get you an occupational or “essential needs” license so that you can drive legally throughout the state of Texas. Because it’s easy to get an occupational license, the impact of losing a license for refusing a breath test is significantly reduced. Add to that the benefits of a DWI case without a breath or blood sample, and it just doesn’t make sense to provide a sample. Call our office for help with your DWI case!