Can I be Convicted without a Blood or Breathalyzer Test?
Drunk driving is a common criminal charge, but there are a lot of misconceptions about it. Some drivers believe they absolutely have to give a blood specimen or take a breathalyzer test when arrested. Others think that if they refuse to test, then there’s no evidence to use for a conviction. The reality of Texas DWI, however, is much more complicated.
Implied Consent to Breathalyzer or Blood Test
Under Texas law, it is implied that all drivers give their consent to take a breath or blood test to determine blood alcohol concentration (BAC) during a DWI arrest. Despite this policy, drivers can refuse to take a breathalyzer or blood test. This is a right, just like the right to remain silent. A police officer cannot force a person to take a breathalyzer or blood test, unless and until they obtain a warrant because of additional grounds, such as intoxication assault or manslaughter.
Warrant Requiring Breath or Blood Test
In certain cases, Texas law allows a police officer to obtain a warrant to require a breath or blood test after an arrest even when a driver has refused to take one. Police officers must believe they have reasonable grounds for requiring a chemical test, including:
The alleged DWI resulted in intoxication assault or intoxication manslaughter where another person suffered serious bodily injury, has died, or will die;
The driver has a prior conviction or was on community supervision for a similar or more serious DWI offense
Refusal to take a Breathalyzer, Blood, or Urine Test
While drivers do have a right to initially refuse to give a blood or breath specimen, this does not mean they cannot be charged with a DWI. In addition, a prosecutor may argue the refusal itself is evidence of alcohol or drug intoxication. Whether a driver is ultimately convicted of DWI is determined at trial or through a plea bargain.Drunk driving cases are complex and have serious repercussions, so it is important for an accused driver to talk to an experienced defense attorney long before deciding whether to plea bargain or go to trial.
Administration License Revocation Hearing
In addition to criminal DWI charges, drivers face license suspension or revocation. When a driver refuses to take a blood or breath test for drunk driving, or if the driver fails the test, their driver’s license is suspended.Registering a BAC of 0.08 or higher for adults— and anything over zero for minors— is failing. Drivers have 15 days to file a request for an administrative license revocation (ALR) hearing to contest a suspension.
About the Author: Andrew Williams I am a criminal defense lawyer with over 20 years experience defending people accused of wrongdoing. I am board certified by the Texas Board of Legal Specialization. Only ten percent of attorneys in Texas are board certified in their respective field. I practice criminal law exclusively in both state and federal court including appeals of criminal cases.