Finding yourself in the middle of a DWI investigation can be an extremely stressful experience. To go from enjoying drink with friends to being asked to perform balance tests on the side of the road is extremely nerve-wracking. Obviously, the surest way to avoid a DWI arrest is to not drive if you have been drinking. But if you find yourself under arrest for DWI in Houston, should you agree to blow or give blood?
In order to properly answer this question, there are several things to consider. In a DWI investigation, a driver will be stopped for a traffic violation or detained at the scene of an accident. Once a DWI officer suspects that alcohol is involved, the officer is trained to administer police balance tests known as Standardized Field Sobriety Tests. Any experienced DWI attorney knows that these tests are very difficult for even completely sober people to pass, especially in the context of a DWI arrest when a suspect will be nervous and fearful of going to jail.
If you do not pass the police balance tests, then an officer will place you under arrest. Once you are under arrest, a police officer will ask you to give a breath or blood sample (the officer has discretion to choose the one he wants to request). In Texas, officers must read specific warnings to a defendant regarding the consequences of failing or refusing a breath or blood test. This form is known as the DIC 24.
In a nutshell, the DIC 24 states that if you are arrested for DWI and agree to give a breath or blood sample, but the result comes back higher than .08, then the Department of Public Safety will suspend your driver’s license for 90 days. If, on the other hand, you refuse to provide a sample, then your license could be suspended for 180 days.
In Houston, if you are arrested for DWI and agree to give a sample, most of the time officers will take a breath sample because it is quicker, easier and cheaper (if they suspect that a DWI suspect is under the influence of drugs, they may request a blood sample initially since a breath sample does not detect the presence of drugs like marijuana or cocaine). Many police agencies have their own breath test machines at police stations and Houston Police Department has one in downtown Houston.
If you refuse to give a sample, officers in Houston will almost always obtain a warrant for your blood. A decade or so ago, this wasn’t the case. Back then, if you were arrested for DWI in Houston and were asked to give a sample, and refused, very often the police would not apply for a search warrant and your case would be filed without a breath or blood result (under Texas law, it is possible to prove intoxication based on the loss of a person’s “normal use” of mental or physical faculties, but prosecutors would rather have a breath or blood test too).
Today, if you are arrested for DWI in Houston and refuse to give breath or blood, the police will apply for a warrant in virtually all cases. In Houston, a prosecutor from the Harris County District Attorney’s Office is on call 24 hours a day to assist police with drafting a search warrant. Judges are also available 24 hours a day to sign search warrants. In many DWI cases in the Houston area, police are able to get a warrant drafted and signed, and have a blood sample drawn within 1 hour.
With all of this in mind, it is our belief that if you are arrested for DWI in Houston, it is probably a good idea to give a sample of breath. First of all, breath is less accurate than blood. If your DWI case one day goes to trial, having breath test evidence – which is based on questionable science and prone to error much more than blood testing – rather than blood test evidence, increases your chance of an acquittal. Second of all, consenting to a breath test subjects you to a shorter potential driver’s license suspension. As noted above, in your driver’s license hearing, giving a sample over .08 subjects you to a 90-day suspension, whereas refusing subjects you to a 180-day suspension.
Finally, it is generally better to be able to say that you cooperated with the police investigation and had nothing to hide. Prosecutors and some District Attorney’s Offices will sometimes treat a defendant who consented more favorably than one who refused (some District Attorney’s offices will disqualify anyone who refuses to give a sample after a DWI arrest from participating in programs like DWI PTI). Also, if your case goes to trial, it is much better for your DWI attorney to be able to argue that you had nothing to hide and cooperated, rather than allowing the prosecutor to argue that you were trying to hide evidence of your guilt, which is an inference of guilt they are usually allowed to draw in the case of a refusal.
As noted, this advice may not be the same in other counties in the Greater Houston area. In some counties, if you refuse, the police may not get a warrant, which means that the police won’t have a breath or blood test to use against you at all. But of course, it is difficult or impossible to know whether an officer would apply for a warrant.