Many clients ask: “If I am stopped by the police, should I blow in the Breathalyzer machine or not?” The answer is: it depends. First, you must calmly and objectively assess your situation. If you have consumed numerous alcoholic beverages and believe that you will blow above a .08 Blood Alcohol Content (BAC), then refuse to take the Breathalyzer test. The real consequence in refusing to take a Breathalyzer is that the DPS may automatically suspend your license for 180 days. There is a caveat to this rule. The DPS suspension process begins 41 days after notice has been given to the individual that refused to give a Breathalyzer test. Once notice of suspension has been delivered you have 15 days to request a hearing.
If you believe you may be over .08 BAC do not take a Breathalyzer. Failing a Breathalyzer is scientific hard to refute evidence that you were intoxicated while driving. Don’t make it easier for the State to prove you were legally intoxicated especially when your reputation and criminal record is at stake.
If you decide to risk the Breathalyzer be sure you can pass. If you take the Breathalyzer and blow over .08 BAC then the DPS may suspend your license for 90 days. If you take a Breathalyzer and blow a .15 BAC then your misdemeanour promotes from a Class B to a Class A, which is the highest misdemeanour level in Texas. The increase from Class B to Class A not only affects your criminal history but also comes with an increase of $2,000.00 in fines or one extra year in jail!
You can always apply for an occupational license after a suspension, thus it may be wiser to refuse a Breathalyzer if you believe the results would not be in your favour. You must weigh your options at the time and ask yourself these questions: Can I blow under .08 BAC? Is it worth increasing my fine by $2,000.00 and jail time? Is it worth increasing my charge from a misdemeanour B to a misdemeanour A? Is a 180-day suspension that much worse than a 90-day suspension in the scheme of things?
After answering these questions and assessing your state of intoxication make a smart decision. Regardless if you accept or refuse the Breathalyzer test, you may still be charged with a DWI. Understanding your rights is the first step to enforcing them.
Julian Nacol, Attorney
Nacol Law Firm, P.C.