# Texas Brethalyzer Refusal Laws **URL:** \ **Category:** In My Humble Opinion\ **Created:** [January 26, 2014, 5:19am UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731 "2014-01-26T05:19:56Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![GreenElf](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@GreenElf](https://boards.straightdope.com/u/GreenElf)\ **Post date:** [January 27, 2014, 9:12am UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/41 "2014-01-27T09:12:27Z")
When I was arrested for a DUI (but I still have a clean record with low insurance rate, not convicted as it never went to trial), they didn’t administer a breathalyzer but took a blood draw at the municipal prison before incarcerating me there. After I was released, I started bleeding out of both ends, and suspect I picked up something either from the blood draw or some other source at the prison. They first had me fill out a form at the prison giving detailed information about my habits with respect to drinking, drugs, etc. I suppose within the papers I signed a consent form for the blood draw, but certainly didn’t know if it was an option to decline the blood draw there at the jail let alone filling out forms. Also, I was completely sober and somehow managed to “fail” the roadside sobriety tests. The next morning, I asked the prison guard when I’d be released and he said he couldn’t say but I could fill out a “complaint form”. Later that day, they transferred me, chained to other prisoners, to a prison with barbed wire fence around it. I didn’t know how long they would hold me there, but was released after 48 hours which I later found out is the maximum time they can hold you for DUI “probable cause”. I haven’t had any nasty encounters with police before or since. You just need to be careful about which officer you meet up with. ---
**Author:** ![Charlie\_Wayne](https://avatars.discourse-cdn.com/v4/letter/c/4bbf92/32.png) [@Charlie\_Wayne](https://boards.straightdope.com/u/Charlie_Wayne)\ **Post date:** [January 27, 2014, 11:02am UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/42 "2014-01-27T11:02:52Z")
> [@GreenElf](#): > > I haven’t had any nasty encounters with police before or since. You just need to be careful about which officer you meet up with. And how does one do that? ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 27, 2014, 1:18pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/43 "2014-01-27T13:18:18Z")
As usual I can answer specifically for my state but it is similar throughout the country. > [@drewtwo99](#): > > Thanks for the good information everyone, but nobody has answered my actual question yet. As others have stated, there is a difference between a field breath tester (which we don’t even have) and the machine back in the station used for the official reading. The field machine is not covered under the refusal. It is only used as part of probable cause. You can not refuse to submit a sample to the desk machine without getting another charge. > [@drewtwo99](#): > > What, EXACTLY, constitutes refusal? Not giving a breath sample or an inadequate sample. > [@drewtwo99](#): > > Does demanding I have access to my lawyer first constitute refusal? Yes. We have a standard form which is read before the test which covers it. You do not have the right to consult with a lawyer or have one present before giving a sample. Its not an interrogation and the act of driving on the roadway means you have legally giving consent. Hence “implied consent.” > [@drewtwo99](#): > > Does just not saying anything at all constitute refusal? You don’t have to say a word. You just have to blow. > [@drewtwo99](#): > > Does asking question after question while saying, “I’m not saying I won’t blow, but…” constitute refusal? You can ask all you want. If you are sober enough to understand the spiel given to you before the test has been vetted to contain the answers to the important questions. Not a refusal. Unless you don’t blow. > [@drewtwo99](#): > > What is the actual law and how is refusal defined or determined? Not giving a breath sample or an inadequate sample. > [@drewtwo99](#): > > So, would it be an official refusal to say, “I will consent to breath or blood testing with my lawyer present,” as long as I made a good faith effort to get a lawyer as soon as possible? > > Would it be up to the jury (if it went to trial) to determine if I had refused or not? Yes. Not in NJ. We don’t have jury trials for traffic matters. Other states do. Here it would be up to a judge to determine if you refused. > [@guizot](#): > > But that’s not what the law you just cited says. It says all the officer needs is reasonable suspicion to arrest **or stop** someone and request a breath test. I know a former cop (and former DEA agent) who told me that all those roadside “sobriety tests” are mostly just for show. They can tell if someone has been drinking (using drugs) enough to test by looking at the eyes and observing other behavior (including driving). The “results” of the roadside “sobriety tests” are almost never necessary in court for conviction–either they get a breath test or they get a refusal. Those, along with the testimony of the cop’s observations (i.e., smell of alcohol on the breath, slurred speech, swerving on the road), are all they need to negotiate a plea or go to trial. Still–the way I understand it–up to the point of testing your breath, they don’t have to put you under arrest. But if you refuse the breath test, then they basically _have_ to arrest you. Well, if you agree with implied consent, then, like it or not, you should understand that it says that driving is considered a privilege, not a right, and when you engage in that activity you relinquish the right to have a lawyer while doing a breathalyzer. (And what would your lawyer do anyway, besides tell you to refuse? It comes down to the same thing.) Your choice is not to drive. Or, if stopped, you can fight it and try to make the case that the device was defective or wasn’t calibrated correctly. I suppose that people have won cases doing this. > > Do you expect to be stopped for no reason–maybe because of profiling? Because that’s what’s really fucked up about “reasonable suspicion.” That’s bullshit. Unless what he meant by “looking at the eyes” was a properly given [horizontal gaze nystagmus test](http://www.nhtsa.gov/people/injury/enforce/nystagmus/hgntxt.html). The standard field sobriety tests are far from pro forma. A few years ago this state finally got rid of the old 1950s breathalyzers. In the past the defense would mostly go after the operation of the machine since there was a lot of room for operator error. Since the new machines are basically idiot proof they mostly go after the probable cause for the stop and the probable cause for the arrest. And if the stop was not conducted properly, including the SFST the case will be lost. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 27, 2014, 1:59pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/44 "2014-01-27T13:59:14Z")
> [@drewtwo99](#): > > The vast majority I found recommended not submitting to testing. But I did forget this one, and a couple others that said it won’t help you not to test, or something. Go back and look. Maybe they were saying you shouldn’t take the field test. > [@Gray\_Ghost](#): > > Also, refusing to give a sample of blood, breath, or urine deprives the State of one of the primary pieces of evidence against you. Now, other evidence beyond a \>0.08% BAC result, may exist that would serve to convict you, such as video of you swerving all over the road, falling on your ass during a field sobriety test or during intake at jail, whatever evidence **Smapti** ’s jury saw that let them to convict for DUI, etc… > > But as DUI is often a strict liability offense, depriving the State of the primary evidence of that violation can only help you, it seems to me. Especially since, if giving a positive sample really didn’t help the odds of getting an accused convicted, I think we can infer the Texas DAs wouldn’t try as hard as they have to get forcible blood draws from those accused of DUI. > > Anyway, I just wanted to give a contrasting view to the idea that one should always consent to giving a blood, breath, or urine test. Safest of all is not to drink and drive, of course. Its different from state to state but in all I know about the penalty for refusal is as bad or worse than the penalty for DUI. And its a lot easier to prove. So if you refuse you _may_ be giving them less evidence for DUI. At the very least you are not allowing a _per se_ argument. But you are handing them an easy conviction on the refusal. And worse case scenario you can get convicted of both. I have always advised friends and family to never refuse a breath test. There is a lot that can go wrong with a DUI case. There is very little that has to be proved with a refusal case. > [@Hector\_St\_Clare](#): > > I’ve never driven in Texas, but my experience in other states is distinctly **not** that ‘by the time you’re asked to take a breathalyzer, your going to jail.’ > > I’ve been stopped, asked to do roadside sobriety tests and given the breathalyzer before. (I usually volunteer to take a breathalyzer before they ask me, so that I can prove I’m not over the limit). I’ve never failed a breathalyzer test (I think once I failed one of the roadside tests due to astigmatism, which the cop actually told me could account for it). Nor have I ever been arrested. > > I’m not a lawyer, but it seems to me that if you can prove that you’re under the legal limit, that can help you, and clear you of suspicion. (N.B. in some states 0.08 is not necessarily the legal limit. In Illinois, for example, you can be cited if you have a BAC of 0.05 AND the cop judges subjectively that your driving is impaired). You are talking about the roadside breathalyzer. I don’t know of any state in which that is used for anything other than a part of the investigation. If you are brought in to take the breathalyzer that counts you are under arrest. Yes I have let people go after passing the field tests. That’s what they are there for. Arresting someone who is under the limit would do nothing for me except get me verbal abuse from my coworkers and a quick plea bargain at trial. Our law states that a DUI is driving while impaired by drugs or alcohol _and/or_ having a BAC of .08% or higher. So if impairment can be proved with a reading below .08% there can still be a conviction. In reality its a really hard case to win and I personally have never seen a case like that go to trial and get a conviction. Even though some people with low tolerance and inexperienced with alcohol are absolutely impaired at a lower level. > [@Gray\_Ghost](#): > > Which is why I’d ask for a blood draw, if I felt I was well below the legal BAC limit and things deteriorated at the stop to where I’m being asked to blow into a device. You would have to check with your state law. Here our implied consent law only covers breath samples. You don’t have the right to ask for a blood draw. If you refuse a breath test that’s it. Other states are different. For instance I know that Pennsylvania’s implied consent law covers both breath and blood. In many jurisdictions in PA their preferred method is blood. Here we only do blood if there needs to be hospitalization anyway. Such as with a life threatening level of intoxication or injury from an accident. But since blood is not part of our implied consent we need a telephonic warrant to make the blood draw legal. For those interested [here](http://www.nj.gov/oag/dcj/njpdresources/dui/pdfs/english1.pdf) (PDF run for the hills!) is the standard form for my state. This statement is read before the breath test is administered. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 27, 2014, 2:05pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/45 "2014-01-27T14:05:53Z")
> [@Loach](#): > > For those interested [here](http://www.nj.gov/oag/dcj/njpdresources/dui/pdfs/english1.pdf) (PDF run for the hills!) is the standard form for my state. This statement is read before the breath test is administered. Too late to edit again. If anyone is wondering, in the PDF it says “including license revocation of up to 20 years.” That is the by far worst case scenario if the arrest included death, dismemberment and insulting the judge’s mother. The standard first offense penalty for DUI or refusal includes 6 months of suspension. ---
**Author:** ![drewtwo99](https://avatars.discourse-cdn.com/v4/letter/d/d07c76/32.png) [@drewtwo99](https://boards.straightdope.com/u/drewtwo99)\ **Post date:** [January 27, 2014, 8:21pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/46 "2014-01-27T20:21:31Z")
Thanks for the clear concise answers Loach. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 27, 2014, 8:59pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/47 "2014-01-27T20:59:40Z")
> [@drewtwo99](#): > > Thanks for the clear concise answers Loach. A t least I can give you some insight from a different part of the country. Unfortunately for those looking for answers such things are not always easily googleable. Often the answers are not found in the statutes but in state case law and the state Attorney General instructions which come from those decisions. Its often from multiple precedents over many years. ---
**Author:** ![Hector\_St\_Clare](https://avatars.discourse-cdn.com/v4/letter/h/b5ac83/32.png) [@Hector\_St\_Clare](https://boards.straightdope.com/u/Hector_St_Clare)\ **Post date:** [January 27, 2014, 10:17pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/48 "2014-01-27T22:17:59Z")
Re: You are talking about the roadside breathalyzer. I don’t know of any state in which that is used for anything other than a part of the investigation. If you are brought in to take the breathalyzer that counts you are under arrest. Thanks. Yes, I was talking about the portable breathalyzer. I wasn’t aware that those results weren’t considered legally valid. I’ve always been under the limit, so never had to go in to take the ‘breathalyzer that counts’. ---
**Author:** ![Stringbean](https://avatars.discourse-cdn.com/v4/letter/s/d6d6ee/32.png) [@Stringbean](https://boards.straightdope.com/u/Stringbean)\ **Post date:** [January 28, 2014, 12:41am UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/49 "2014-01-28T00:41:02Z")
So you can refuse the “roadside” breathalyzer? As in, the officer on the road wants you to blow into this machine and you say “I will only be forcibly subject to the breathalyzer at the station as per the law.” ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 28, 2014, 1:24am UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/50 "2014-01-28T01:24:47Z")
> [@Stringbean](#): > > So you can refuse the “roadside” breathalyzer? > > As in, the officer on the road wants you to blow into this machine and you say “I will only be forcibly subject to the breathalyzer at the station as per the law.” Or you can just say, “No thanks.” Many of the DUI lawyers websites say to not submit to any field tests. I’m not sure understand that completely since DUI specialists usually know just how to attack those tests on the stand. Fewer means less to go wrong and less to attack. But I am not a defense lawyer and I don’t know all their tricks. Bottom line: I don’t know of any state that compels you to take any field test including the field breath test. But I will not guarantee that’s true in all 50. But I’ve never heard of it being that way in any state. ---
**Author:** ![guizot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guizot/32/3636_2.png) [@guizot](https://boards.straightdope.com/u/guizot)\ **Post date:** [January 28, 2014, 1:58am UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/51 "2014-01-28T01:58:35Z")
> [@Loach](#): > > That’s bullshit. Unless what he meant by “looking at the eyes” was a properly given [horizontal gaze nystagmus test](http://www.nhtsa.gov/people/injury/enforce/nystagmus/hgntxt.html). Yes, that’s what he meant–the test with the flashlight. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 28, 2014, 2:01pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/52 "2014-01-28T14:01:31Z")
> [@guizot](#): > > Yes, that’s what he meant–the test with the flashlight. That’s not at all how you wrote it. The way you wrote it seemed like your friend was saying that the standard field sobriety tests are total bullshit and all he needed to do was look in someones eyes and see how they are acting. Instead you were really talking about one of the main components of the standard field sobriety tests. A test that must be administered in a very specific way in order to get a result. Its more than just “looking at the eyes.” The standard field sobriety tests have been established by the National Highway Traffic Safety Administration as the best way to determine if someone is over the legal limit. The only three tests that NHTSA has established as being accurate are the HGN, walk and turn and the one leg stand. Any other tests that officers can come up with do not meet the national standard and do not have any scientific studies backing them. Their studies have shown that when given properly and when all 3 are used in combination, the tests are [91%](http://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htm) accurate. The HGN test itself is 88% accurate. And its pretty freaky when you see someone’s eyes bouncing around like that. Of course from a defense stand point the key is whether the tests were administered correctly to determine probable cause. The lawyers that specialize in DUI cases can pick apart the tests, the officer, his training in giving the tests etc. They can literally spends hours hammering the officer on the stand. But that’s where I don’t quite understand the tactic of advising to not take the tests. If they are given there is something to pick apart. Refusing to take the tests is not a free pass. Its not like the officer will have to let you go because he can’t test you. It just means that he’ll have to be more detailed in his report about his observations. Sometimes due to circumstances (injury, extremely high intoxication etc) its not even possible to attempt the tests. I’ve never had a problem getting past suppression motions due to lack of probable cause in those circumstances. Maybe a defense lawyer can come by and explain why they think one tactic is better than another. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 28, 2014, 4:48pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/53 "2014-01-28T16:48:11Z")
> [@Lazlo Hapsburg](#): > > Statements like this just scare the Beejeezus out of me because it reaffirms the belief that cops are somehow superhuman beings and know better than the rest of us. That was not how I meant my statement. Of course cops can be and are wrong in many cases. My comment was directed at the OP who posited a scenario where he may have had 1 drink several hours ago and gets pulled over by a cop. He worried that the cop might suspect/arrest him for drunken driving. In my experience, while there are a few rogue cops out there, there is near zero chance of even being suspected of being under the influence in such a situation. Generally police know the difference between someone who is drunk (even the reduced “legally drunk” .08 standard) versus someone who had one drink three hours ago. On the list of things to be concerned about in life, being suspected of driving drunk by a police officer in that situation is near the bottom. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 28, 2014, 4:57pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/54 "2014-01-28T16:57:49Z")
> [@Loach](#): > > But that’s where I don’t quite understand the tactic of advising to not take the tests. If they are given there is something to pick apart. Refusing to take the tests is not a free pass. Its not like the officer will have to let you go because he can’t test you. It just means that he’ll have to be more detailed in his report about his observations. Sometimes due to circumstances (injury, extremely high intoxication etc) its not even possible to attempt the tests. I’ve never had a problem getting past suppression motions due to lack of probable cause in those circumstances. > > Maybe a defense lawyer can come by and explain why they think one tactic is better than another. The reason for not taking the tests is so the jury won’t see you on video stumbling and falling while trying to walk a straight line. You can cross examine the officer about proper technique and methodology, etc., but the jury generally can’t get past what they see with their own eyes. If a person refuses the FST, then there is no such evidence to present. The intangible evidence in your report about the odor of alcohol, slurred speech, glassy eyes, etc. can all be attributed to non-intoxication related things, and without visual evidence of intoxication, the jury will more likely side with the accused. That and hammering home the concept of “reasonable doubt” generally works better than looking like Rip Torn in his intake video. Further, you all have become much more technically solid in your FST (along with speeding tickets) so that you have insulated yourselves from the most common attacks against them. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [January 28, 2014, 5:20pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/55 "2014-01-28T17:20:58Z")
What refusal is: The officer will read you, verbatim, the warnings on a standard form used statewide called the DIC-24. He will then ask for a sample of your breath. If you refuse, stay silent, or in any other way do anything other than provide a breath sample, he will ask you to sign the DIC-24 indicating that you refuse to give a sample. If you do not sign the form, the officer then signs the line that says, “Suspect refused to sign.” One way or the other, that’s the refusal; either you sign, or the officer signs. Google “DIC-24” to see the form. Pretending to be asleep is not a good idea. By law, if you are unconscious, you are deemed to have consented to a blood draw. Incidentally, “no refusal weekends” basically mean that the police will have magistrates, JPs, county judges, district court judges, and so forth either actually on site or “on call” by a fax machine to sign search warrants on the spot, so that the police can take a blood draw. Refuse if you want, your blood will be taken, and the law exempts the police and medical professionals from any liability for injuries you may suffer as a result of physically resisting the needle. Which is, of course, an additional criminal charge in itself. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 28, 2014, 5:22pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/56 "2014-01-28T17:22:22Z")
> [@jtgain](#): > > The reason for not taking the tests is so the jury won’t see you on video stumbling and falling while trying to walk a straight line. You can cross examine the officer about proper technique and methodology, etc., but the jury generally can’t get past what they see with their own eyes. > > If a person refuses the FST, then there is no such evidence to present. The intangible evidence in your report about the odor of alcohol, slurred speech, glassy eyes, etc. can all be attributed to non-intoxication related things, and without visual evidence of intoxication, the jury will more likely side with the accused. That and hammering home the concept of “reasonable doubt” generally works better than looking like Rip Torn in his intake video. > > Further, you all have become much more technically solid in your FST (along with speeding tickets) so that you have insulated yourselves from the most common attacks against them. Well I’m in a state in which DUIs are heard in traffic court, no jury. So that isn’t a consideration here. But I do see your point. However, the subject will still be on camera but not doing the tests. My point being if you have a per se case of .08% BAC or over the only way around that is to attack the PC. One of the ways to attack the PC is to attack the tests and the tester. The old strategy of attacking the breathalyzer operation is gone. The not so old days when we had to break open vials of chemicals is over. Now the machine is pretty much idiot proof. As long as the maintenance records are up to date its hard to go after the reading. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 28, 2014, 5:26pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/57 "2014-01-28T17:26:46Z")
> [@Max\_Torque](#): > > What refusal is: > > The officer will read you, verbatim, the warnings on a standard form used statewide called the DIC-24. He will then ask for a sample of your breath. If you refuse, stay silent, or in any other way do anything other than provide a breath sample, he will ask you to sign the DIC-24 indicating that you refuse to give a sample. If you do not sign the form, the officer then signs the line that says, “Suspect refused to sign.” One way or the other, that’s the refusal; either you sign, or the officer signs. Google “DIC-24” to see the form. > > Pretending to be asleep is not a good idea. By law, if you are unconscious, you are deemed to have consented to a blood draw. > > Incidentally, “no refusal weekends” basically mean that the police will have magistrates, JPs, county judges, district court judges, and so forth either actually on site or “on call” by a fax machine to sign search warrants on the spot, so that the police can take a blood draw. Refuse if you want, your blood will be taken, and the law exempts the police and medical professionals from any liability for injuries you may suffer as a result of physically resisting the needle. Which is, of course, an additional criminal charge in itself. That makes sense. The big difference between that and what happens in NJ is that there has been recent case law which makes it much harder here to get a warrantless blood draw. To get one from an unconscious person requires a warrant. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [January 28, 2014, 10:13pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/58 "2014-01-28T22:13:49Z")
> [@Loach](#): > > That makes sense. > > The big difference between that and what happens in NJ is that there has been recent case law which makes it much harder here to get a warrantless blood draw. To get one from an unconscious person requires a warrant. There was quite the uproar all around the state when the Supremes dropped the McNeely case. Lots of people moaned, “Is this the end of mandatory blood draws?” Many others shouted right back, “Not necessarily!” And the whole issue still seems very much in the air to me. [This recent case](http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=a9bc0dbc-6dcb-4632-bf6c-85d97de4b2d2&MediaID=863dae2a-a432-44e2-b9bc-a15063111d26&coa) from Nueces County has a weird twist, in that it appears critical to the court’s decision that the driver did not consent; the State seems to have conceded that he did not consent, while the State should have argued “_implied_ consent”. Seems like they used the same words while meaning different things, or something like that. It’s currently being appealed to the Court of Criminal Appeals, anyway, so maybe it’ll get clarified. ---
**Author:** ![LinusK](https://avatars.discourse-cdn.com/v4/letter/l/258eb7/32.png) [@LinusK](https://boards.straightdope.com/u/LinusK)\ **Post date:** [January 29, 2014, 5:05am UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/59 "2014-01-29T05:05:53Z")
> [@Loach](#): > > As usual I can answer specifically for my state but it is similar throughout the country. > > As others have stated, there is a difference between a field breath tester (which we don’t even have) and the machine back in the station used for the official reading. The field machine is not covered under the refusal. It is only used as part of probable cause. You can not refuse to submit a sample to the desk machine without getting another charge. > > Not giving a breath sample or an inadequate sample. > > Yes. We have a standard form which is read before the test which covers it. You do not have the right to consult with a lawyer or have one present before giving a sample. Its not an interrogation and the act of driving on the roadway means you have legally giving consent. Hence “implied consent.” > > You don’t have to say a word. You just have to blow. > > You can ask all you want. If you are sober enough to understand the spiel given to you before the test has been vetted to contain the answers to the important questions. Not a refusal. Unless you don’t blow. > > Not giving a breath sample or an inadequate sample. > > Yes. > > Not in NJ. We don’t have jury trials for traffic matters. Other states do. Here it would be up to a judge to determine if you refused. > > That’s bullshit. Unless what he meant by “looking at the eyes” was a properly given [horizontal gaze nystagmus test](http://www.nhtsa.gov/people/injury/enforce/nystagmus/hgntxt.html). The standard field sobriety tests are far from pro forma. A few years ago this state finally got rid of the old 1950s breathalyzers. In the past the defense would mostly go after the operation of the machine since there was a lot of room for operator error. Since the new machines are basically idiot proof they mostly go after the probable cause for the stop and the probable cause for the arrest. And if the stop was not conducted properly, including the SFST the case will be lost. I disagree re: the SFSTs. They’re basically balance tests, except the HGN, and lots of perfectly sober people can’t do them. You add to that nervousness, performance anxiety, and poor conditions - like cars zooming past, sloped and debris-strewn roadsides, and women who have to choose between doing them in heels or barefoot - and it’s joke. I’d consider a “bad” video one where there’s slurred speech, people stumbling when they’re just trying to do normal things, or else talking nonsense. Which is why a lot of lawyers advise against taking the Intoxilyzer. You can explain a lot of stuff, but it’s hard to explain how a .11 is less than .08. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 29, 2014, 12:48pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/60 "2014-01-29T12:48:11Z")
> [@LinusK](#): > > Which is why a lot of lawyers advise against taking the Intoxilyzer. You can explain a lot of stuff, but it’s hard to explain how a .11 is less than .08. I don’t see how it is any easier to explain away a refusal. You either did or didn’t. Didn’t = guilty. And in any state I know about, the penalty for refusal is as bad or worse than DUI. And here at least it counts as a DUI conviction when determining if its a 1st or second offense. I recently had a friend of my girlfriend get a DUI and refusal (and other stuff) in Pennsylvania. Not only did she lose her license after being found guilty, she has to go in front of a PENNDOT civil hearing just to hear the refusal again. She could get an additional years suspension on top of the traffic court sentence. I’m sure its possible but I have never seen successful defense of a refusal. In fact its usually an easy court day. “Get rid of the refusal and he’ll plead guilty to the DUI.” And I disagree with your disagreement. The two balance tests in the SFST are not difficult. You don’t have to do them perfectly to pass. One misstep is not going to be a problem. There are a specific amount of errors that must occur for it to be a fail. If you are sober you are going to pass, especially when all three are done in conjunction. I have seen plenty of people pass the tests. They were sent on their way. Any properly administered tests will include finding out if there is any physical problems which may hinder the taking of the tests. And the roadway was be level and clear of debris. I can provide a [cite](http://www.nhtsa.gov/people/injury/alcohol/sfst/appendix_a.htm) for studies conducted by the federal government showing the effectiveness of the SFST. I would like to see the studies that prove they are a joke. It would be interesting to compare. [Previous page](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731.md?page=2) [Next page](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731.md?page=4)