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When can law enforcement require a breath test for DUI?

| Apr 21, 2021 | DWI-DUI

It can happen to anyone. You go out for a social gathering at a restaurant, bar, or a friend’s house. You have a few drinks. Then you head home. As you’re driving home you suddenly see red and blue flashing lights in your rearview mirror. Your heart pounds. You palms get sweaty. Are you at risk of being charged with a DUI?

The answer will probably depend on whether you’re subjected to a breath test. Law enforcement and prosecutors often rely on the results of a breath test to initiate a drunk driving arrest, file charges, and eventually push an accused individual into a plea deal. This means that this one test could have major implications for your life moving forward. After all, a DUI conviction can lead to jail time, fines, license suspension or revocation, and a criminal record that could haunt nearly every aspect of your life.

So when are you required to submit to a breath test?

Let’s start off by recognizing that you have the right to refuse a breath test. Under Texas law, a police officer can only require you to submit to a breath test if he or she has reasonable grounds to believe that you’ve been driving under the influence. This means that an officer has to have reasonable suspicion that you’re committing some sort of offense before you can be stopped, at which point he or she will probably ask you questions and observe your demeanor to determine if they have reasonable grounds to ask you to take breath test.

While Texas has an implied consent law, you are not required to take a preliminary breath test. In fact, these preliminary tests are an evidence-gathering tool used by the police to generate the probable cause that is necessary to carry out an arrest. In other words, you can refuse an officer’s request to take a breath test without facing any consequences so long as you haven’t been placed under arrest. Doing so might be the best way to avoid criminal charges.

However, if you’re placed under arrest for drunk driving, then Texas law considers you to have impliedly consented to a breath test. While you can still refuse a test at this point, you’ll be hit with a license suspension that lasts at least 180 days. There are even circumstances where law enforcement can force you to be subjected to a blood or breath test, such as if you are accused of drunk driving with children in the vehicle or you’re accused of being intoxicated and causing a serious injury or death.

Know when and how to fight to protect your rights

A lot of people end up being convicted of drunk driving simply because they don’t know their rights. Law enforcement officers and prosecutors can ask you to do things in a way that makes it seem like you’re required to comply, but that isn’t always the case. In fact, in some instances the police violate your rights from the get-go, which could play to your favor in a criminal case because such actions could lead to the suppression of otherwise damaging evidence.

DUI cases might seem relatively simple on their face, but exploiting the nuances of the law can play to your favor. That’s why if you’ve been accused of drunk driving you might want to take the time needed to fully analyze the facts of your case and determine your best course of action. A criminal defense attorney who is well-versed in this area of the law might be able to help you do just that.

 

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