Breath Test or Blood Test

Which Should I Take if I Am Arrested?

This question is the one most asked of me in casual conversation when people find out that I am a DWI lawyer. The ideal answer is, of course, “Neither!” However, in today’s legal environment, aggressive law enforcement officers are going to do their best to obtain one of them, and they have the legal tools to do that. Let me break it down for you so that you can make an informed decision about this important question.

No Refusal/Implied Consent

First, the law in Texas says that when you got a drivers license you agreed to give a blood or breath specimen. (I’m sure you remember.) Therefore, you have to give one or the other, or the law will suspend your license- maybe. There is even a legal form that all arrestees are supposed to get after arrest setting out their rights and obligations, and it is usually entered into evidence at their trial, should they have one. The most obvious choice is to choose a license suspension over evidence that will be used against you in court. In other words, refuse a breath test. Well, what happens after that?

It turns out that the United States Supreme Court disagrees with Texas and all other States that have implied consent statutes. Because a breath test is not as invasive as a blood draw, a breath test is not a “search” as that word is defined in the lexicon of laws dealing with searches and seizures under U. S. law and the Constitution. So they can just ask for a breath test, and if you refuse, they can take your license-maybe. However, a blood draw is a search within the meaning of the laws of the U. S. and the Constitution. Therefore, if you refuse to give permission for a blood draw, the police cannot take your blood unless they get a search warrant from a judge. Will they really do that? Not always, but in most instances, yes. However, delay favors the defendant in this situation. So go for it! Just say, “No, Sir.”

Bexar County, San Antonio, Texas

Now in San Antonio and Bexar County the officers will get a search warrant and take your blood if you refuse a breath test. It turns out, that’s ok! In this County the prosecutors don’t use the blood results in a trial, and they have not been using them for quite some time. We don’t know when they will start using them, but even if some time in the future they will, it’s still ok. If your lawyer knows something about blood testing and the lab that tested your blood, it’s not that easy for the prosecutors to introduce the results into evidence. In fact, most prosecutors in this area have not really been trained much about it because most people just plead guilty. In some rural areas they don’t take blood draws, and if you refuse a breath test, just like in San Antonio you will end up with neither a breath test result nor a blood test result. Cool. So always refuse a breath test right?

The Rest of Texas

The breath testing program in this State is a bit of a mess in a lot of places. There was a time when breath test results were like the “Gospel Truth” in DWI cases, and the State’s experts who testified spoke the Gospel. It turns out that when the law started really putting the burden on the State to show breath testing is SCIENCE, things started breaking down – things like breath test machines. It turns out that the program got so lazy, that in a lot of areas of the State they didn’t even calibrate the machines! The records showed that the machines were failing, a lot, and most of the time they failed when the supervisor wasn’t even there. He didn’t even know about it most of the time. When the records became available, the Department of Public Safety started having trouble explaining it. Some prosecutors got mad at the Department for not providing information to them about the failures of the machines and their lack of calibration. If you have a lawyer who knows a lot about breath testing, the prosecutors may not be able to get that test result into evidence. So if you are in a rural county somewhere, it might be okay to take a breath test, but as a general rule you should just say “No.”