No one expects to be facing a situation in which they are asked to take a breath test. But if law enforcement is asking for a specimen of your breath, it’s important to understand the law and understand what your options are. A typical DWI investigation includes a request for a breath or blood sample.
Most states operate under an “implied consent” system. Implied consent means that by obtaining a driver’s license you consent to give a breath specimen if asked by law enforcement. If you don’t, then you can face the loss of your driving privileges, as a Forney DWI lawyer can explain. For example, in Texas if you refuse a breath test you can lose your license for up to 180 days for a 1st DWI offense. Multiple DWI offenses can lead to a “hard” suspension where no occupational license or work permit is allowed.
What about blood tests? Don’t the police need a warrant for those?
Yes, the police need a warrant get your blood and you can refuse a request for a blood sample. The Supreme Court has adopted different protections for breath and blood test requests by law enforcement. Whereas you have the absolute right to refuse a blood test (McNeely vs Missouri), the Supreme Court has also held that you can be penalized for refusing a breath test (Birchfield vs North Dakota). The reason? The majority in Birchfield decided that a breath test is less intrusive than a blood test.
Yes, breath tests can be mandatory
Given this recent decision in Birchfield a state can pass laws to penalize drivers who refuse a breath test. Every state has different laws regarding implied consent and it is important to check your local statutes to find out what those laws are. Some states make it a crime to refuse a breath test. So if you refuse a breath test you could be charged with DWI and another also charged with failing to provide a breath sample. That gives the State a lot of leverage to get you to plead guilty.
Should what should I do?
The best advice is to not drink and drive, take a cab or get a driver If the police are asking if you have been drinking it is because they already think you are a DWI suspect. Find out what the DWI implied consent laws are in your state so if you are ever faced with the decision to provide a specimen you will know what to do.
Thanks to our friends and contributors from Guest & Gray Law Firm for their insight into breathalyzer tests.