The age old question about whether to consent to a DWI breath or blood test is still the question many people who socially drink and fear a DWI investigation want answered, particularly now that they read in the news that cops will forcefully draw their blood if they refuse. The answer in most situations is still “NO”, for several reasons.
First, the breath machine (intoxilyzer machine) has serious reliability issues. Texas still uses the outdated intoxilyzer 5000 machine, although there are numerous better quality machines on the market, in order to save money on machines and parts. The machine assumes that every person has the same breath to blood ratio (X amount of breath equals Y amount of blood, which actually varies greatly). Additionally, simple things like breath temperature, temperature of the machine, proper calibration, etc. can lead to an unreliable result. Also, mouth alcohol could greatly increase the number. Thus, I can see very few circumstances, unless you have not been drinking at all, to consent to a breath test. There are too many scenarios in which you can be under the legal limit, but blow over the legal limit. (Plus, if you are over the legal limit, all you are doing is giving them a “scientific” piece of evidence that will be very damaging to you in court).
The harder question is whether to consent to a blood test now that blood warrants have become so common. A few years ago, blood warrants were unheard of because they were extremely rare in the DWI world. Back then, the officer asked for consent, and you either gave it or you didn’t. Your refusal could and still can be used against you, and that is how they investigated and prosecuted driving while intoxicated cases, using video evidence and field sobriety tests along with the refusal.
Now, officers are trained to get blood warrants, i.e. if they have probable cause to arrest you for driving while intoxicated, and you refuse to voluntarily provide a breath or blood test, they can write out a sworn affidavit and get a judge to sign a search warrant based on the affidavit. In Grayson and Fannin County this has become the common practice, so if you refuse a test they will almost certainly get a search warrant for a blood specimen. The hospitals, who always want to be in good with law enforcement and the district attorney’s office so they can get more business from the counties, routinely assist law enforcement in these forced blood draws even though they conflict with their oath to not do things harmful or not medically necessary.
So, knowing this, should you consent to a breath or blood test at the time the officer asks? In most situations, almost all, you should refuse. First, they will be using a DPS blood draw kit that has been sitting in the back of the officers car in the Texas heat for the last six months, and it relies on a rubber seal for its integrity. The person drawing your blood will not be a doctor or nurse but probably a phlebotomist (technician) whose last job was at Dairy Queen or somewhere similar. They will give the blood sample back ot the officer who may let it sit in his evidence locker for weeks or months fermenting. Second, when they draw your blood, they will not be looking for just alcohol, but any prescription medication you may be taking. This will put you on the defensive if you take medication, because you will need an expert to come into court and battle the State’s argument that, even if you were below the legal limit, the “synergistic effect” of the drugs and alcohol made you intoxicated. You can be intoxicated on prescription drugs alone, and they will argue this. Third, the State is again just trying to get evidence to be used against you. They already believe you are guilty or they wouldn’t have arrested you. Blood alcohol levels spike and valley, and chances are that if you consent to a test, it will be taken much quicker than a test where the officer has to get a warrant. Thus, your blood alcohol level will likely be lower on a warrant test.
Again, they can prosecute you for driving while intoxicated no matter what your blood alcohol test reads, so what do you really have to gain by providing a chemical test?
If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.