DWI TEXAS - TO BLOW, OR NOT TO BLOW?

Often times, I get asked whether a person should submit to a breathalyzer test when accused of driving while intoxicated ("DWI"). The answer to this question is not a simple yes or no. My first response is always -- DO NOT DRINK AND DRIVE. But we are human, and if you are found in this situation, you should understand the following points and contact a criminal defense attorney.

1. Under the Texas implied consent law, anyone with a driver's license that is lawfully arrested by an officer with probable cause to believe the driver is intoxicated, automatically consents to chemical testing of their blood, breath, or urine.

Generally, upon suspicion of driving while intoxicated, an officer will ask the driver to submit to a "test." The test may be a standard field sobriety test ("SFST"), or a portable breath test ("PBT"). THE DRIVER IS NOT REQUIRED TO SUBMIT TO EITHER. These tests are given to the driver as a means to establish probable cause. However, probable cause may be established through observation of the driver, including their behavior, appearance, and speech.

Once a driver is lawfully arrested for DWI, the officer chooses the chemical test (blood, breath, or urine) that under the Texas implied consent law , the driver is required to provide.

2. An officer in Texas is required to obtain a warrant from a magistrate for blood testing.

Generally, this is a quick, efficient process in Texas. The Code of Criminal Procedure permits a magistrate to consider information communicated by phone or other reliable electronic means when determining whether to issue a search warrant.

3. Generally, a breath test is less reliable evidence than a blood test.

Often times, people are under the impression that refusing a breath test will "buy" them time to "sober up" while the officer seeks a warrant to withdrawal blood. As mentioned above, in Texas, receiving a warrant to withdrawal blood is streamlined.

Additionally, Texas has an outdated breathalyzer system. This system carries a larger margin of error than a blood test, and is therefore less reliable evidence to use against you.

4. Failing a chemical test for DWI, or refusal of a chemical test, may not automatically suspend your license.

Requesting a hearing through the Administrative License Revocation ("ALR") process within 15 days of your arrest, keeps your license valid until your ALR hearing takes place. If the state fails to prove certain facts at the ALR hearing, your license will not be suspended. However, if you fail to request an ALR hearing, your license will be automatically suspended.

5. Texas does not allow you to plea a DWI charge to a lesser offense.

DWI penalties in Texas for first and second offenses:

First Offense Second Offense

- up to 180 days in jail - up to 1 year in jail

- fine of $2,000 - fine of $4,000

- mandatory license revocation for at least 90 days - license suspension for at least 180 days

Consult a criminal defense attorney for a properly tailored defense if you have been charged with DWI.

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Law Office of Ryan Putz, PLLC

Galveston, TX 77301​

(409) 996 - 6982

www.ryanputzlaw.com

The information contained in this Website/blog entry is provided for informational purposes only, and should not be construed as offering legal advice, or creating an attorney client relationship between the reader and the author. You should not act or refrain from acting on the basis of any content included in this Website without seeking appropriate legal advice about your individual facts and circumstances from an attorney licensed in your state.

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