# 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:** 5\ **Page:** 4
**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, 4:07pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/61 "2014-01-29T16:07:25Z")
> [@Loach](#): > > 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. Most of what you said is wrong, as far as Texas law is concerned. A refusal is not any kind of offense at all. The only penalty is a potentially longer DL suspension. People refuse, and win at trial all the time. In fact, most acquittals are refusals - if the the BAC is much higher than .08 the defendant probably isn’t going to win. (Unless it’s much hire, and the defendant looked very good in the video, which would indicate there’s something wrong with the machine.) If it’s much lower, it’s probably not going to trial at all. That leaves refusals - and lots of people refuse, and for other reasons besides they “know” they’re going to blow over. The fact that somebody refused the test may be _some_ evidence, but by itself it doesn’t prove, beyond a reasonable doubt, that somebody is intoxicated. In fact, if you said a refusal by itself, was enough to convict somebody, you’d be struck from the jury panel. The balance tests may not be difficult for you, but they are difficult for lots of people, especially if they’re older, overweight, or just have a poor sense of balance. Anyway, there is no pass or fail, as far as FSTs are concerned. Cops refer to mistakes, or missteps, as “clues”, and there’s no particular number of clues they need to decide to make an arrest. All they need is “probable cause” - which is a low standard. As a practical matter a cop who merely suspects somebody is DWI is going to make the arrest, because what is his other option? It’s letting somebody who may be DWI get back in his car and drive away. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 29, 2014, 8:08pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/62 "2014-01-29T20:08:51Z")
> [@Loach](#): > > 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. In my state, a refusal is a civil penalty which will cause you driver’s license to be suspended for twice the time period of a DUI conviction. It also does not operate as a DUI conviction for recidivist purposes. A refusal can also be challenged for no PC. If the penalties were like they are in your state, I may very well rethink my strategy, but as they are now, my advice is pretty standard. Politely refuse FST in all circumstances and refuse portable breath tests if there is any chance that your BAC is approaching .08. The only possible thing that they can do is give additional evidence to convict you of DUI. As far as “passing” the FST, a local cop around here known as “Mr. DUI” has candidly told me that nobody passes the FST. Of course there is some self-selection going on: You wouldn’t ask someone to do a FST if you didn’t already think that they were intoxicated, but I agree with **LinusK** here. Your legs are already stiff from driving; you are in an unfamiliar place along side of the road; you are nervous as hell because you might be going to jail unless you perform the test right. Never mind if the ground nearby is sloping or the weather is bad. There is a high likelihood of failing the FST which just adds PC for an arrest. Yes, I can challenge the tests at trial, but I would rather there not be any such evidence to have to challenge in the first place. For the “real” test at the station, I would reverse the presumption from the portable test. If there is any chance you think you might blow under .08 or close, then take the test and save your license. If you have been drinking for the last 17 hours and know that you will blow an astronomical amount on the breath test, then don’t give additional evidence that will almost certainly convict you of DUI. ---
**Author:** ![Senegoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senegoid/32/6606_2.png) [@Senegoid](https://boards.straightdope.com/u/Senegoid)\ **Post date:** [January 30, 2014, 6:40am UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/63 "2014-01-30T06:40:12Z")
From [Chuck Shepherd’s _News of the Weird_, 1/26/2014 edition](http://www.uexpress.com/newsoftheweird/): > [@](#): > > – Robert Bourque, 55, was convicted of DUI in Sarnia, Ontario, in October, but continued to deny the charge. He admitted he had four beers on the day of the traffic stop but said the Breathalyzer result was misleading because he had recently poured alcohol into his ears to test his theory about how Jesus healed the sick. (Bourque was acting as his own lawyer.) Toronto Sun, 10-11-2013] ---
**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 30, 2014, 1:12pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/64 "2014-01-30T13:12:00Z")
> [@LinusK](#): > > Most of what you said is wrong, as far as Texas law is concerned. I’ll assume that is correct for there. Not here or in many other states I know about. A refusal is a separate charge which carries the same exact penalties as a DUI. And it basically counts as a DUI. So if last year you were found guilty of a refusal and this year you were found guilty of DUI, this year’s charge will count as a second offense with the enhanced penalties that brings. So basically all a refusal does is make it an easy court day for the officer. Which I happen to be fine with but I have personal reasons for that. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 30, 2014, 1:31pm UTC](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731/65 "2014-01-30T13:31:18Z")
For those asking about how exactly one “refuses” a test, here is the statute in my state: [QUOTE=W.Va. Code§17C-5-7] . Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing. ``` (a) If any person under arrest as specified in section four of this article refuses to submit to any secondary chemical test, the tests shall not be given: Provided, That prior to the refusal, the person is given an oral warning and a written statement advising him or her that his or her refusal to submit to the secondary test finally designated will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least forty-five days and up to life; and that after fifteen minutes following the warnings the refusal is considered final. ``` [/QUOTE] So oral and written warnings, and then you have 15 minutes to change your mind. Also with regards to forcible blood testing, note how the statute says that if a person refuses “the tests shall not be given.” For years, the state Supreme Court interpreted that as “the tests shall not be given” and disallowed testing for any reason when the arrestee refused. Last year, a DUI arrestee was charged with killing 7 people while drunk and forcibly tested while unconscious. The state Supreme Court reversed itself finding that the clear language of the statute meant that, by golly, you could test with a warrant after all, and even though there was no warrant in this case, there could have been had the judge known about this retroactive decision, so it was harmless error and a good test. A perfect example of bad facts making bad law. [Previous page](https://boards.straightdope.com/t/texas-brethalyzer-refusal-laws/679731.md?page=3)