DWI Breath Test: Is It Better to Refuse or Fail?

If you're pulled over in Texas for driving while intoxicated, are there good reasons to refuse to take the Intoxilyzer 5000 breath test? Because there are costs and benefits on both side of the equation, there is no strictly right or wrong answer to the question of whether to take the test or refuse.

On the Side of Taking the Test

Though many DWI attorneys advise their clients to refuse breathalyzer tests, some lawyers tell clients to go ahead and take the tests. The legal logic behind taking the test includes the following factors:

  • If you take the test and fail, you are subject to an administrative license suspension of 90 days, half of the 180 days your license will be suspended for refusing to take the test.
  • For many people, the lengths of those suspensions make the risk of submitting to the test worth taking.
  • It should be noted that the 180-day suspension is for first-time offenders. If you have a past DWI conviction, you risk losing your license for two years for refusing the test. For many people accused of DWI, a potential two-year suspension is a pretty powerful incentive to take the test.

On the Side of Refusing the Test

  • A failed breath test gives a prosecutor more leverage at trial because they've got hard evidence to show the court that you had been drinking prior to your arrest.
  • After a Breathalyzer or Intoxilyzer refusal, the defendant is on more equal footing in court; the government has to make its case based solely on the police officer's observations rather than a readout from a test.
  • There's a 25 percent margin of error with the Intoxilyzer test, meaning that even if you blow a .06, the machine could still determine that you have a .08 blood alcohol level. The .08 is, of course, the level at which you are deemed by the government to be impaired and guilty of DWI/DUI. So if you've had just a drink or two, you might well hit the .08 level on the machine, even if your actual BAC is truly lower.

Everyone Must Decide

Everyone pulled over for DWI has to decide for themselves whether they should take test or refuse. There are pros and cons for either approach.

Regardless of which way you go, DWI attorneys agree that clients are best served by not admitting any wrongdoing to law enforcement personnel.

Whether you've refused the test or are being charged with DWI, there are legal hurdles to overcome in getting your driver's license returned. Contact an experienced Texas criminal defense lawyer who has a history of defending DWI/DUI charges to best preserve your legal rights.