Should You Voluntarily Provide a Breath or Blood Test When Arrested for DWI

Date Published 1 · 22 · 24

I am often asked by my clients if they should voluntarily provide a breath or blood sample when they are arrested for Driving While Intoxicated in Texas. I often hear attorneys advise to never voluntarily provide a sample when requested by an officer. However, I do not believe there is a simple answer to the question anymore and before you decide to voluntarily provide a breath or blood sample you need to consider the following:
(1) What happens if you refuse to voluntarily provide a blood or breath specimen verses the consequences of voluntarily providing a specimen and failing;
(2) If the officer will obtain a warrant if you refuse to provide a specimen; and
(3) Is the officer requesting a blood or breath sample.

Consequences of Not Voluntarily Providing a Sample

There are two main consequences in refusing to provide a blood or breath sample when requested by an officer. First, if you refuse to voluntarily provide a sample when requested by an officer your driver’s license will be suspended for a longer period. Second, if you go to trial on your case, the prosecutor can argue in court you refused to voluntarily provide a sample because you are guilty.

• Driver’s License Suspension Consequences

The consequences to your driver’s license for refusing to provide a sample when requested by an officer will depend on your age and if your license has previously been suspended for failing or refusing to provide a sample upon request by an officer or for a conviction of DWI, Intoxication Assault or Intoxication Manslaughter 10 years prior to the date of your arrest.

• Over the Age of 21

First offense

If you are over the age of 21, it is your first DWI offense, and you refuse to provide a sample, then your license will be suspended for a period of 180 days. However, if you voluntarily provide a breath or blood sample, and the sample is 0.08 or greater your license will only be suspended for 90 days.

Prior suspensions or convictions in the past 10 years

If you are over the age of 21, and you refuse to provide a breath sample upon request and your license has previously been suspended for failing or refusing a blood or breath test or for a conviction of DWI, Intoxication Assault or Intoxication Manslaughter during the 10 years preceding the date of your arrest then your license will be suspended for a period of two years. However, if you voluntarily provide a sample and the sample is a 0.08 or greater your license will be suspended for one year.

• Under the Age of 21

First offense

If you are under the age of 21, it is your first offense, and you refuse to provide a breath sample, then your license will be suspended for a period of 180 days. However, if you voluntarily provide a breath sample, and the sample has a detectable amount of alcohol or you have an alcohol concentration of 0.08 or greater your license will only be suspended for 60 days.

Prior suspensions or convictions in the past 10 years

If you are under the age of 21, and you refuse to provide a breath sample upon request and your license has previously been suspended for failing or refusing a blood or breath test or for a conviction of DWI, Intoxication Assault or Intoxication Manslaughter then your license will be suspended for a period of two years. However, if you voluntarily provide a breath or blood sample and the sample is a 0.08 or greater than your license will only be suspended for 120 days. If you voluntarily provide a breath or blood sample and the sample is 0.08 or greater and you have two or more suspensions or convictions DWI, Intoxicated Assault, Intoxicated Manslaughter or drug offenses preceding the date of your arrest then your license will be suspended for a period of 180 days.

As you can see, the length of suspension is significantly shorter if you consent to provide a breath or blood specimen upon request and the sample is 0.08 or greater then if you refuse to provide a sample.

Trial Consequences for Not Voluntarily Providing a Sample

Argument

The second consequence for refusing to provide a blood or breath sample when requested by an officer, is the prosecuting attorney can argue in trial you refused to provide a blood or breath sample upon request because you were intoxicated and you knew you were guilty. In my opinion this is not a very effective argument in trial. Most people have been told at some point in their life not to provide a breath or blood sample when being arrested for DWI, so I do not believe juries pay too much attention to this argument. I have obtained numerous Not Guilty verdicts in my career when my client refused to voluntarily provide a sample despite the prosecutor making the argument. The jurors did not appear to pay much attention to it because most people have been instructed not to provide a blood or breath specimen when requested by an officer. Therefore, I do not think this is a major consequence to consider in making the decision to voluntarily provide a specimen.

Evidence

In Texas, a person commits the offense of DWI if the individual is operating a motor vehicle in a public place while intoxicated. A person is considered intoxicated if the person has lost the normal use of the mental or physical faculties because of the introduction of alcohol or another substance into their system or if they have an alcohol concentration of 0.08 or greater.

If you voluntarily submit to a blood or breath specimen and the specimen is a 0.08 or greater, you will have voluntarily provided the prosecutor with some evidence to use against you at trial. However, in deciding to voluntarily submit to a blood or breath specimen you should consider if the state will obtain the evidence without your consent by obtaining a warrant for a blood specimen.

Will the officer obtain a warrant for a blood specimen if you refuse to provide a blood

or breath sample?

The second factor to consider in determining to voluntarily provide a blood or breath sample when requested by an officer is if the officer will obtain a warrant for your blood if you refuse to voluntarily provide a sample. In Texas, an officer is able to obtain a warrant for a sample of your blood if the officer has probable cause to believe you are operating a motor vehicle in a public place while intoxicated. In the modern age of technology, it is not very difficult for an officer to obtain a warrant. For example, in Nueces County, as well as many other counties throughout Texas, there are magistrates who are available to sign search warrants for officers to obtain a blood sample 24 hours a day. In Nueces County, and numerous other counties in Texas, it is common practice for the officer to obtain a search warrant for a blood sample when the officer has probable cause to believe the individual is operating a motor vehicle while intoxicated.

Type of sample being requested

After making the decision to arrest an individual for Driving While Intoxicated the officer will request either a blood or breath sample from the individual. Over the years, I have found juries do not trust the results of a breath test machine as much as they trust the results of a blood test.


My Recommendations
Now that we have discussed the factors to consider when deciding to voluntarily provide a sample after being arrested for DWI, it is important to come up with a way to make your decision when you are being requested to provide a sample. In my opinion, the main factor to consider when determining to provide a blood or breath specimen by an arresting officer is whether the officer will obtain a warrant for a blood sample if you refuse.
If the officer is going to obtain a warrant, then you will face harsher license suspension consequences if you refuse to provide the sample and the officer will still obtain the sample, so you should voluntarily provide the sample. Also, if the officer is requesting a sample of your breath and will obtain a warrant for your blood, juries tend not to trust breath samples as much as blood samples, and I often use that bias as an advantage when defending my client at trial.
If the officer will not be obtaining a sample of your blood if you refuse to provide a breath or blood sample, then I advise not to voluntarily provide another piece of evidence the state may use to convict you at trial.
If you do not know if the officer will obtain a warrant when you are being requested to voluntarily provide a sample, you should not be afraid to ask the officer. If you ask the officer if he or she will obtain a warrant if you refuse, the officer will have to make a decision. The officer will have to decide to answer your question honestly, not answer your question or answer your question dishonestly. If the officer answers the question honestly you can make an informed decision. If the officer chooses not to answer the question or dishonestly answer your question, it will appear that the officer is not providing you with a fair opportunity to make an informed decision. I have often found officers will either answer the question honestly or try not to answer the question. When the officer chooses not to answer the question, I have been able to argue in court the officer is not providing my client a fair opportunity to make an informed decision and I have found it is a good way to score points for my client at trial.

I hope you have found this article to be helpful in making an informed decision to voluntarily provide a breath or blood specimen if you are ever arrested for DWI in Texas. In the event you have been arrested for Driving While Intoxicated in Texas, and wish to discuss your case with me, feel free to call my office at 361-882-7788 and I will be happy to schedule an initial strategy session with you.

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