In our last post, we made several important points about the consequences of refusing to submit to an alcohol test in the state of Texas. By way of summary, these consequences are that the driver: will have an automatic license suspension; can have the refusal used against him or her in court; and will still be required to submit to a test if the officer obtains a warrant. This is not to say, however, that a DUI suspect should always submit to a request for an alcohol test.
For one thing, it is important to distinguish between preliminary breath testing and evidential breath testing performed after an arrest has been made. Preliminary breath testing is used to identify intoxicated drivers, while evidential breath testing is used to determine the suspect’s level of intoxication and may be used as evidence in court. DUI suspects are not required to submit to a preliminary breath test, and many if not most attorneys would advise declining these tests.
In order for evidential breath tests to be used as evidence in court, proper procedures must be followed and the tests must be performed correctly by a properly trained and certified individual. In addition, a DUI suspect must received the proper legal notice before an officer requests such a test. In cases where the officer fails to provide this notice, there may be problems with using the test results in court.
Another important point is that those who have had their license suspended as a result of a test refusal have the right to a hearing in which they are able to contest the officer’s reasonable suspicion or probable cause to stop and arrest the individual, as well as whether probable cause existed for the drunk-driving charges, and whether there was an arrest, a request for an alcohol test and a refusal to submit to the test. The hearing must be requested within 15 days of the person receives notice of license suspension, or the opportunity is lost.
Navigating DUI defense is not an easy task, and those who face charges should always work with an experienced attorney to make sure they understand the process as they go through it, that they are able to take advantage of protections along the way, and that their rights are protected.
Texas Transportation Code: Title 7; Subtitle J; Chapter 724; Subchapter A. Accessed Feb. 27, 2015.
American Prosecutors Research Institute, “Breath Testing for Prosecutors: Targeting Hardcore Impaired Drivers,” Jeanne Swartz, December 2004.