When a police officer stops you and suspects intoxicated driving, he will administer a field sobriety test. If you fail the test, he will place you under arrest for DWI and has the option to offer you either a breath or blood test. You can refuse to take the breath or blood test, but a refusal to take a test will result in your driving privileges being suspended for 180 days.
For a DWI second offender, the suspension period is two years. The officer does not need to ask your permission for a test if you were in an accident that leaves you unconscious. If you take a breath or blood test and fail, your driver’s license will be suspended for 90 days. In most cases, you can obtain an occupational license to allow you to drive to and from work during the suspension period for either 90 or 180 days.
It is possible for a BAC (blood alcohol content) test to give a false reading. Factors like diet, medical history, and exposure to chemicals can lead to a BAC misrepresentation. An experienced DUI lawyer will be able to examine your case for any testing inaccuracies that may be present.
SHOULD YOU TAKE THE TEST?
You have three options to weigh in deciding whether to take a test…
If you are clearly intoxicated, you may want to take the test since your suspension period will be cut in half.
If you are absolutely certain that you are not intoxicated, you should take the test to avoid the filing of charges against you.
If it is a close call or you are uncertain about whether you are intoxicated, you may want to refuse the test. This refusal will result in a suspension of driving privileges, but will deprive the prosecution of scientific proof that you are intoxicated in case you fail the test. Be advised that your refusal to take the test is admissible in evidence during your trial, but this evidence is less damning than a failed test result.
Refusing a Blood Alcohol Level Test
If you refuse to take a BAC (blood alcohol concentration) test, the officer will take your license. In its place, you will get a temporary permit that is good for 41 days. Within the first 15 days you can request a hearing to challenge the suspension of your license. Justin Sparks files a request for a hearing to challenge every license suspension, which gives him an opportunity to compel live testimony by the police officer to get early discovery of the facts in each case.
The police do have the authority to seek a court order in the form of a search warrant to obtain a blood sample from you following an arrest for an alcohol-related offense. If you have decided not to take a test, do not let the officer’s threat to obtain a search warrant get you to agree to a blood test. Let the officer get a court order, because there may be mistakes in his probable cause affidavit that could cause the results to be suppressed. Additionally, it takes more time to prepare a sworn affidavit and present it to a judge for approval, which may allow time for the alcohol in your system to dissipate.
If the police obtain a search warrant to obtain a blood sample, it is important that you cooperate and do not physically resist, since additional charges might be filed. You should not consent to the blood draw after a warrant has been obtained, but should comply with instructions during the blood draw itself.
If the police officer gives you the option of either a blood or breath test, and you decide to take a test, always ask for a breath test. Compared to a breathalyzer test, blood tests are extremely accurate and harder to fight in court. Tarrant County and other jurisdiction areas do have scheduled “no refusal weekends” with magistrates on duty to order blood tests for every person arrested for a DWI. If you are arrested during one of these time periods, you may be faced with a blood test even if you refuse to take a test.
HIRE AN EXPERIENCED DWI DEFENSE ATTORNEY
Justin Sparks has handled hundreds of DWI cases during his career as a Tarrant County Assistant District Attorney and as a criminal defense lawyer. He stays in close contact with you as the case progresses through the criminal justice system.
Justin Sparks offers a free consultation where you can look at your case and counsel you and how he would proceed. Alcohol and DWI-related cases require immediate attention, call Justin today at 817-334-0300.
Justin Sparks has been defending clients across Fort Worth and Dallas for over ten years. Our firm helps you through the criminal process, from investigation to appeals, if need be. Free consultations for all new cases.