To Blow or Not To Blow? A Little Texas DWI Law.

In a comment to this post, in which I mentioned that I thought the ±25% margin of error of the Intoxilyzer 5000 was a good reason not to blow if you’re arrested for DWI, first-time commenter Scott wrote:

Your comment regarding refusing to blow intrigues me, as a green attorney, given the likely loss of driving privileges for one year or more (depending on the state). Do you hang your hat on being able to then beat the administrative process or is it a “trade-off”? (“Client, you may not be able to drive for a year, but at least you didn’t get a DUI!”).

I’m only talking about Texas here; the calculus may be different in other states.

In Texas, the administrative license suspension for refusing to blow is 180 days. We frequently beat the ALR suspension. If we don’t, an occupational license is available.

The administrative license suspension for blowing and failing is 90 days. But a failed breathalyzer gives the government a lot more leverage at trial. And in Texas a first DWI is a criminal offense that’ll significantly restrict your liberty, give you a lifelong criminal record, and cost you a whole lot of money (H/T Austin DWI defense lawyer Ken Gibson).

So if you knew you were going to blow higher than .08, you might rationally decide that the improved chance of beating the DWI was worth the possible extra 90 days of driving on an occupational license.

What if you had been drinking, but thought that your BAC was less than .08?

First, having a BAC less than .08 doesn’t get you there. If your BAC is .06 or higher, a reading of .08 is within the machine’s margin of error.

Second, remember that if you have been drinking your judgment might be impaired. If you’ve had anything to drink, you might not be the best person to guess at how intoxicated you are.

Third, remember that, in Texas, by the time you’re asked to blow into an Intoxilyzer-5000, you have probably already been arrested, which generally means that the cop thinks that he has probable cause (based on the field sobriety tests) to believe that you had lost the normal use of your mental or physical faculties.

Since a DWI can be proven either by loss of normal use or by a BAC over .08, if you blow under .08 after you’ve been arrested the officer does not have to cut you loose. You can still be charged with DWI and have to deal with the same headaches and risks as if you hadn’t blown.

What if you haven’t been drinking at all? If you blow .00, you’re buying yourself a date with a “Drug Recognition Expert”, a cop trained to find some explanation for your loss of mental or physical faculties. Even if you haven’t been drinking, you can be prosecuted for DWI if the police think that you have lost your faculties because of the introduction of a drug into your body.

So don’t blow.

Even better, if you’re pulled over in Texas and the cop asks you to to the field sobriety tests, politely decline. It’s a rigged game. More on that later.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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15 Responses to To Blow or Not To Blow? A Little Texas DWI Law.

  1. El Cucuy de la Corte says:

    Well, since this guy likely couldn’t do the majority of the field sobriety tests, blowing is what tanked his case:

    http://www.news.com.au/dailytelegraph/story/0,22049,23907003-5001028,00.html?from=public_rss

  2. sctexas says:

    Off topic, but no advertising is as good as write up in the Chron, eh?? Nice work!

  3. Mark Bennett says:

    Yeah, just in case there had been any lingering doubt about who the luckiest sumbitch at the criminal justice center was . . .

  4. Hamlet had it easier.

    I tend to disagree, but nonetheless, even assuming you are giving good advice, how many of your future clients will remember all this great advice when your drunk. Afer all, the FIRST thing to go when your drinking is your JUDGMENT.

  5. Mark Bennett says:

    You’re just going to “tend to disagree” and leave it at that? What a tease!

  6. Fine. I’ll indulge you :)

    If it is your first offense, you should blow. The money you would have to pay a lawyer to win at trial or get a good plea bargain would probably be equal to the total fines and costs if you blew and just pled guilty, right?

    What you risk is what happens daily across police departments across the United States (“You passed. Here are your car keys, have a good day”). (Of course–maybe I live in a bubble. We only have two DRE’s on duty that covers 200 miles of space). Plus, you have to consent to the DRE exam, don’t you?

    This is why it is usually repeat offenders who have no license don’t blow. They have nothing to lose–their license is already gone.

    If it is your second offense and beyond, fine the don’t blow analysis might work.

    But if I were a defense lawyer, I think my advice to future clients would be “refuse roadsides, blow unless you are absolutely sure you are smashed.” I think a prosecutor would give a better deal to somebody who they knew had a BAC of .08 then someone who had enough indicia of intoxication to take something to trial, but refused a chemical test, then hired a Houston lawyer to argue “But wait, you see, the reason my client didn’t blow is because he knew even though he was at .000 that the cops would call a DRE….” I’m not sure if a jury buys that one all the time.

    But then again, you’re the one winning DUI trials all the time :)

  7. Michael says:

    The last little teaser is great – “Even better, if you’re pulled over in Texas and the cop asks you to to the field sobriety tests, politely decline. It’s a rigged game. More on that later.” I assume the error margin on the field sobriety tests are huge. What is the consequence of refusing the test? In Florida, none other than refusal can be used against you at trial. And, I guess, you can expect to be arrested. Of course, my understanding is that the officer has pretty much made up his mind to arrest for DUI before asking you to submit to field sobriety tests.

  8. Pingback: Report: Most elected officials refuse to contribute to their own prosecution « Off the Kuff

  9. sakura says:

    Well, the officer wants to arrest you. He may not even care if you are drunk or not, so I’ve heard in TX, he gets A BONUS FOR ARREST NOT CONVICTION…… If I wanted a little extra money in my pocket, I might be tempted to make an arrest to get it. What do you think some officers might do to help their family better, house payment, car payment. After all, that is their job…… Many other states are dong this too….

  10. Thomas says:

    Most police officers are corrupt anyways. They do not care about the law because they break it constantly. Its all about the money! As long as you are a public official you can get away with anything in north texas. Recently a HP officer stopped a county judge and her husband driving and let the husband go intoxicated and made the judge drive. WOW!! I think we need some Law Enforcement Police to keep our cops in check. (kicker is, the HP was a commssioners daughter)

  11. Thomas says:

    Another thing….. the county in which I reside, has put into effect a plan that makes the appealing a traffic ticket, just as or more expensive than paying the fine, simply to create more revenue. This seems unlawful to me…

  12. Allen says:

    Around North Texas, law enforcement is soooooo corrupt. Recently a county judge and her husband who had been drinking were stopped by a Highway Patrol officer (commissioners daughter). She simply asked the Judge to drive and let them man go. Now any normal citizen would have been arrested but any public official in these parts could get away with murder. (been done as well). We need some Law Enforcement Police to keep our law enforcement in check. They are getting way out of control.

  13. DR. JOHN says:

    My girlfriend just lost her Texas driver’s license for 2 years for not blowing (in Bastrop, Texas). And she has never been in front of the judge.

    She was pulled over for not using a turn signal when she changed lanes (road under construction). She was in a line of cars and just happened to be the driver that the cop picked. Just before getting into her truck that evening, she had consumed some cough medicine, which had alcohol in it, so she elected not to blow. She was far from being intoxicated.

    They pulled a blood sample, which the lab tech said was relatively thick. According to the tech, this indicated that her blood alcohol was low.

    Ever since then, we have tried to get the lab results. Now, over 4 months later, we still cannot get the lab report.

    She has received no tickets and had no other DUI/DWI in many years.

    What did we just observe?

    “Irresponsible administration of justice?”

    “Fleecing the public while the judge is simply not caring?”

    “Intentional malicious behavior on the part of elected officials?”

    All I know is that an unemployed mother of two children has no way to get her kids to school, through no fault of her own.

    • Mark Bennett says:

      How’d she lose it for two years, when the suspension for refusing to blow (the first time) is 180 days? Prior DWIs?

      They pulled a blood sample, which the lab tech said was relatively thick. According to the tech, this indicated that her blood alcohol was low.

      This is nonsense. I assure you that if you add one part of alcohol to 1,000 parts of blood (0.1%) you can’t tell a difference.

  14. outtahouston says:

    @Mark, thanks for the info and posting the topic; it’s certainly one which affects numerous people (responsible and irresponsible) on a daily basis. I think the big question that’s not addressed is an average legal expense a first timer expect to pay for your defense services. I’m sure it depends on a million variables, but there must be some average from which people can gauge the cost/benefit?

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