Pocket “consumer use” breathalizers are far in quality from the standard ones the cops use.
Sure. But this:
tells that the quality of even the official ones is less than great. How far off can the handheld ones the cops use be if the good ones are that bad?
There are two ways to refuse: 1. By saying “no” and 2. By not taking the test. You can stall for a while if you want, but in the end if you don’t blow in the machine (and blow HARD) it’s a refusal. There are no magic words that change the result. You either blow or you don’t. If you don’t, it’s a refusal, no matter what you’ve said in the meantime.
So what would happen if the officer asked me to blow, and I said “I agree with the implied consent law of Texas and do agree to blow, but only under supervision of my lawyer?” Does that count as a refusal?
If it still counts as a refusal, that’s pretty fucked up if you ask me. People shouldn’t be required to submit to officer’s requests (other than name, address, driver’s license and insurance if driving). I agree with implied consent laws in theory, but not being able to have legal counsel around during state testing just seems wrong.
And I will disagree with your earlier statement. Blowing a zero is pretty much meaningless in terms of whether you’ll be arrested or not; if you’re taking the breathalyzer, you’re under arrest. You’ve already failed the roadside sobriety test.
Thank you for the link.
The law as written does not seem to define what refusal actually is. It does mention that a person will be given something to sign officially declaring that they are refusing to submit to testing. What if a person refuses to sign because they are willing to do testing, but only under advice/supervision of their legal counsel?
I don’t see anything in the Texas law that says a person has a right to their attorney being present, but I don’t see anything either about what defines refusal. I don’t see anything about how long a person has to respond to the officer once the request is given.
I honestly don’t know what I’d do in this situation. Like I said, I don’t drink and drive, not even a little bit. I rarely drink anyway, and when I do, I don’t drive afterwards.
But I am very leery of the whole practice and would definitely want to talk to a lawyer.
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?
So it seems that what you ought to do is go ahead and have that talk with a lawyer, ASAP, proactively, before any push comes to shove there at some roadside in the middle of the night. See what a genuine, bona-fide, realio-trulio leegle beegle in Texas has to say.
ETA: And let us all know what you learn. Inquiring Dopers want to know! There’s no telling whose ass it will be there at some roadside in the middle of the night.
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.”
guizot, fortunately I have been blessed to be a middle-class white male, so I almost certainly won’t be a victim of profiling while driving around in Texas (though I think there are a few rare cases of Hispanic or Black officers profiling other races).
I’ll try to contact officials and see what they say. It’s distressing that refusal is not well defined in the law.
I have researched many DWI websites and blogs for Texas and every single one of them states unequivocally “do not submit to testing.”
I doubt I will ever find myself in this situation because I’m a pretty good driver who never drinks and drives. I just want to know more about the law and such.
From this DUI lawyer’s website:
**Should You Refuse to Take a Mandatory DWI Test in Texas?
It usually does not help you to refuse to take a blood or breath test when you are arrested. **
Umm, you sure about that? You might want to go back and re-read them.
“For certain values of ‘every single one,’”
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.
I’m not confident in the info at the link cited by Lacunae Matata. Mainly because “no refusal” weekends are now a thing in Texas, and the article doesn’t mention that possibility at all. Further, the article makes it sound like the 180 day license suspension for refusal is absolutely set in stone, whereas other attorneys, (such as this DWI defense lawyer infamous in Houston) mention that refusal triggers an administrative hearing where it is not absolutely certain that your license would be suspended. What does this DUI defense lawyer say about giving a breath sample?
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.
Yes. They’re not going to call a lawyer down to watch you blow in the machine, and even if they did, it wouldn’t affect the results of the test. If you don’t blow, it’s a refusal, regardless of what you say before hand.
BTW, the consequences for refusing are not all that severe. It’s 180 day suspension, instead of 90, and you can still occupational DL either way.
I know in movies attorneys routinely bust into police stations to interrupt whatever the police are doing, but in real life lawyers have no more access to police stations than anyone.
You have a right to have a lawyer before submitting custodial interrogation (interrogation that happens after you’ve been arrested) but not before deciding whether to blow into a machine. Or, for that matter, before a blood draw - although they do have to get an order from a judge to do that.
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).
As other people have said, the best advice is to make sure you’re well under the legal limit.
Not all police departments have portable breathalyzers. There are places where the only field sobriety test they have is the roadside balance stuff, and the only people who see the breathalyzer are the ones who were taken to it in handcuffs in the back of a police car.
How can a refusal help you?
If you’ve had nothing to drink, but the cop suspects you enough to ask…
- You blow zero - there goes exculpatory evidence if the case goes any further
- The device is inaccurate - You are taking to the cop shop for further testing etc and you can challenge the result in court. The thing is though, you refuse and you are going for further testing anyway.
Option 3. For whatever reason, the device shows greater than 0.08—you burped, the machine’s out of calibration, some medication you’re taking is causing a false positive, etc…—or enough alcohol that, coupled with other indicia, the officer feels he has probable cause to arrest for DUI. 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. Anecdotally, one way to help avoid this deterioration is to deny to the officer that you’ve had anything to drink that night. This won’t help you if you’re reeking of booze—and may earn you the additional charge of lying to the cops—but it may save your stupid behind if you’re able to maintain a sober facade.
Cabs people. I know they suck in Texas, and you run the not-inconsequential risk of getting your car towed in the interim, but use them. Eventually Yellow Cab will send someone (though it may take three or more calls, sigh.) I have not had a DUI, and I do not drive while intoxicated, but I have had friends who’ve been popped. Expect to spend, when the probation/piss test/mandatory AA criminal justice industry has finally gotten their claws out of you and you clear paper, at least 5,000 bucks and probably a lot more. Never mind insurance rate hikes, possible job issues (losing a CDL, etc…), the joy of getting to declare (if you hit someone while you were drunk, or are a multiple offender) on job applications that you are a felon. It’s just not worth it to play LEO roulette.
That’s right - under the federal Criminal Code, failure to blow into a road-side screening device, or into the breathalyzer at the police depot, carries exactly the same penalty as a conviction for driving .08.
We don’t rely on the crutch of “implied consent to blow” in Canada. Refusal to blow is an offence, period.
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.
Maybe you believe this to be true because they have so much experience with drunk drivers that they just get to know all kinds of things. But what happens on the first day on the job for a rookie cop? How does he/she know those things?
Maybe we don’t even need judges and lawyers and courts? Maybe we should just let the cops decide who is guilty and what their punishment should be.
Maybe if the cops decide that someone deserves a beating - not necessarily for something they did today. But because of something they did in the past? Maybe that’s OK to let them give the driver a beating.
The thing that scares me the most is that so many people believe that only cops can judge other cops and we should let them do that.
Most places I’ve been to do in fact allow cops to handle complaints about other cops and even pass laws that people are not allowed to sue cops for anything wrong they do on the job.
I have seen cops engage in testilying and that is just some real scary shit.
I’m sorry to disagree with you. But I don’t believe that cops know certain things any better than most other people and I think that belief is a very dangerous thing.