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Breath Test


To Blow or Not to Blow Is NOT The Question

One question is asked of me in a social setting more than any other when people learn I am a DWI defense lawyer: “Should I blow or not?”  I realize they are usually just curious, but I refuse to answer.  I hate the question. The question has serious flaws, so giving an actual answer would do a disservice.

Flawed Questions Have Flawed Answers

General answers to flawed questions are an open invitation to being seriously wrong.  One change in circumstance could lead to radically different considerations and even a completely opposite answer from the general situation.  Lawyers know countless specific factors affect the answer.  A critical part of our job is to consider such factors before rendering advice. Asking the right question is essential.  “To blow or not to blow” definitely is not the right question because it’s incomplete.

I’ll mention four (of MANY) easily identifiable flaws in the question: 1) the arresting officer may ask for blood, not breath, and Texas law gives the officer the choice, not you; 2)  refusing to blow may lead to its own criminal charge, one often much easier to prove than your DWI charge, which is applicable in some other states and under federal law, such as arrests made on Padre Island National Seashore or military bases; 3) you may be unconscious or otherwise unable to make any choice; and 4) if you refuse, your blood may be drawn against your will.

Many other examples of how flawed the question is come to mind, but I don’t want to make an exhaustive list. I just want to emphasize the answer isn’t simple and depends upon the circumstances in the case.

I’ve also limited myself in this blog post to the criminal case aspect of refusal. Suspension of driver licenses usually occurs through a separate civil proceeding called administrative license revocation, or ALR. Refusals are treated in that process with much more severe suspensions than breath or blood test “failure”, as in .08 or greater results.

I Hate Breath Testing

My disdain for breath testing in DWI cases is thorough.  I think it’s an exceedingly poor and inaccurate vehicle for arriving at truth.  I hate breath testing with a passion and believe it should not be used in DWI cases at all.  Its speed and ease may be great for the state’s purposes, but it’s a horribly unfair way to decide someone’s fate.  Details on why this is so will be presented in a later writing on this site.  Even with my low opinion of breath testing, the answer to the blow or not blow question might change, depending upon the circumstances.

DWI Defense Is Not Ordinary Criminal Defense

In all criminal cases, the less evidence the prosecution has against you, the better it is for the defense. The state has the burden of proof beyond a reasonable doubt. The defense has no burden of proof at all about guilt.  Providing evidence against yourself may be used against you.  In criminal law, it is practically axiomatic you should never provide evidence against yourself.  Confessing guilt or turning over physical evidence is a terrible idea from a defense lawyer’s perspective.

Refusing police requests to blow isn’t legally the same as refusing to answer police questions.  Refusing to provide statements against yourself when asked by police is protected conduct. At trial, your refusal to talk is almost always taboo for the prosecutor to mention. The judge even specifically tells the jury they cannot use your silence against you.

If you are suspected of murder and refuse to cooperate with police requests, our laws protect you. If you are charged with a misdemeanor DWI, however, a harsher standard applies. In DWI trials, the state gets to use your refusal to blow against you as evidence of your guilty conscience. It is one of many unjust, unfair, and downright wrong ways the state sets up laws in an effort to cheat to win in DWI cases, in my opinion.

Don’t Plan How To Act When Arrested For DWI

Planning ahead about your expected DWI arrest is a bad idea.  The best plan has nothing at all to do with blowing or not blowing after a DWI arrest.  The best plan is never be in a position to be suspected or accused of DWI at all. 

If you’re reading this after a DWI arrest, the chances you planned your DWI arrest are virtually nil.  You also are fully aware drunk driving is dangerous activity and almost certainly agree it’s a bad idea.  Everyone knows this.  The American public has been inundated with that message for at least 40 years. You can’t change what already happened, and you probably regret it for a number of reasons, even if you are innocent.

Even passionate DWI defense lawyers like me are not advocates for drunk driving. Who in his/her right mind would be?  We know drunk driving is a serious and dangerous activity.  We don’t want people to be hurt or killed.  We and our loved ones drive on the same roads as everyone else.  If you want to ask me how to avoid a DWI conviction, my answer is to never drive after drinking.  That answer is also applicable to whether you should blow or not blow.

Innocent Or Not, You Deserve The Best Defense

A DWI defense lawyer properly seeks the best outcome for his/her client. This is true whether the client is guilty or innocent. By the time they come to us after their arrests, the damage is already done.  We have no business condemning or judging our clients.  We have a professional obligation to do our best to achieve the best outcome, regardless of the circumstances.  

I’m passionate about defending people accused of DWI.  I know drunk driving is dangerous. I also know the state tries to rig the process in its favor and needs to be fought. I like being in that fight. The state is far more powerful than the individual. Fighting an unethical bully like that is righteous work, and I find it fulfilling.