TO TAKE THE TEST, OR NOT TO TAKE THE TEST

Hopefully this will never happen to you, but there comes a time in some people's lives when they are faced with the crucial question- to take the test, or not to take the test. Here's a brief breakdown of the pros and cons of taking a breath test.

If you do take the breath test and the results show an alcohol concentration of .08 or more, your breath test results will be used against you as evidence of your guilt in court. However, it is important to note that there are many problems with the intoxilyzer machines used by the police departments. The accuracy of the test results can be contested, and the results may be suppressed. There are many factors that can affect the reliability of a breath test reading. Also, keep in mind that the breath test is not required for a conviction in a DWI. The meaning of "intoxicated" for purposes of the DWI statute is: 1.) "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or 2.) having an alcohol concentration of 0.08 or more." Texas Penal Code §49.01 (2). Therefore, even if you do not take the breath test, the state can still prosecute you for DWI if they believe they have enough evidence.

There are implications to your decision in whether or not to take the breath test. If you refuse to submit to the taking of your breath sample, you face a suspension of your drivers' license for a period of 180 days. However, if you do take the test and fail, your license may also be suspended, but for a shorter period of time- 90 days. Some police officers, in an attempt to convince the citizen to take the breath test, warn that if they refuse to take the test, their license will be suspended. The reality is however, that your license will be suspended even if you take the test and you fail.

The suspension of your driver's license can be contested. You have 15 days from the date of your arrest to request a hearing from the Texas Department of Public Safety. If your license does get suspended through an Administrative License Revocation Hearing, you can petition the court for an occupational license. An occupational license, if granted by the court, allows you to drive to and from work and in the performance of essential household duties. There are several restrictions and requirements to this limited privilege to drive which should be addressed with your attorney.

It is important to know your rights. You have the right to refuse the breath test though your failure to take it may be introduced at trial. If you do not take the breath test, the state will be forced to rely only on the testimony of the officer regarding your performance on the standardized field sobriety tests and any other relevant information. If you do take the breath test and fail, you can be sure the prosecutor will rely heavily on that evidence and it will be up to your attorney to fight the validity of the results. You should consult with an attorney regarding your case or any specific questions.

Helen Simotas became licensed to practice law in Texas in 1996 after graduating from St. Mary's University School of Law. Ms. Simotas is also a graduate of Gerry Spence's Trial Lawyers College.
No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.