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DWI BLOOD TESTS
Are blood tests more accurate than breath tests? Blood tests are not always reliable.
About David Breston
The Breston Law Firm has handled over 4,000 cases and has been helping people in Texas since 1987. Watch this video to find out more about our firm
CHOOSING A DWI LAWYER
Learn how to choose a DWI lawyer and the importance of choosing an experienced attorney.
A Texas DWI charge can cost you to lose your license, you face fines and may cost you your job.
Have you been charged with Driving While Intoxicated (DWI)? Watch this video by David Breston explaining how he may be able to help you.
DWI BREATH TESTS
Should you refuse a breath test if you are pulled over for DWI in Texas? Watch this video to learn.
The original field sobriety test may date back to the 1950s or so when it became apparent that driving while intoxicated was on its way to becoming a national concern. However, every police department and municipality had their own version of it – which led to confusion and often false arrests. In the early 1970s – as driving became a national pastime and interstate highways were completed – the National Highway Traffic Safety Administration took the lead in addressing the problem of drunk driving.
The NHTSA came into existence in the late 1960s because of public pressure to what appeared to be manufacturers disregard to vehicle flaws that were resulting in thousands of deaths each year. But soon they turned their regulatory powers to the issue of intoxicated driving. Over the course of a decade they worked with law enforcement organizations to improve and standardize the field sobriety test. Among other things, they created a model for police to use in training their officers to correctly implement the FST and have since conducted a number of studies to (in their opinion) validate the reliability of this tool.
A standard FST could require the suspected drunk driver to perform a number of physical movements and it is often up to the officer to make the determination of whether or not a person is driving while intoxicated. Exercises that a driver may be asked to complete include walking a straight line and turning, standing on one leg, reciting the alphabet, or following the movement of an object with your eyes alone. The accuracy of any of these 'tests' – and therefore the validity – are ambiguous at best and perhaps wholly dubious. The reasons for this are numerous.
Perhaps the greatest problem with the field sobriety test is that is relies on the subjective opinion of a police officer to decide if an individual is intoxicated. A number of studies have proven over the years that this leads to a significant number of false arrests. In addition, the field sobriety test fails to consider that drivers who are ill may present as a person who is intoxicated. For instance, persons who have inner ear ailments (or even something as simple as an ear infection) will struggle to both balance on one leg and/or walk a straight line and in some injuries to the brain an individual may not be able to follow an object with their eyes. Finally, older drivers or those with disabilities are likely to have problems with all aspects of the field sobriety test. But that does not mean they are intoxicated. Yet, despite all the evidence to the contrary, law enforcement still continues to utilize field sobriety tests as a tool for making a snap – or initial - decision about drunk driving. The police officer's opinion could then result in a probable cause for a driver's arrest - particularly if the driver 'fails' it and then refuses the breathalyzer exam.
The Texas legislature and law enforcement stand ready to further flex their ability to impose on the thousands of innocent drivers on this state's highways by declaring that – not only on random weekends – but now every weekend for the entire year will be a No-Refusal Weekend. It seems that while the innocent citizens of the state were going about the business of working and raising families we have allowed our government to usurp powers that we had not intended. Let us take a closer look at the meaning and impact of 'No-refusal weekends' on the average Texas American.
'No-refusal' means that if an officer of the law – using his own powers of observation and discernment – stops your vehicle – either at a sobriety checkpoint or in the course of a normal traffic stop – and believes you to be intoxicated then when he or she asks you to submit to a breath test you cannot fall back on your Constitutional rights and refuse. If you do then the police may resort to draconian measures. By that I mean you will be detained while a warrant is obtained to allow for the forceful removal of a sample of your blood against your will and say so.
One must remember that to a certain extent a driver has already agreed to provide a breath analysis and/or blood sample upon request by law enforcement when you signed for your driver's license – a surprise to many who fail to read the 'fine-print' in their hurry to complete the paperwork at the DMV for a driving permit. This 'implied consent' further complicates the issue of 'no-refusal' weekends (or otherwise) because you have already tacitly agreed to the breath test and/or blood analysis when you initially signed for a Texas license (it's part and parcel of the state extending driving privileges to an individual).
So the state of Texas and its police force seem to be doubly armed against a citizen who has been stopped for a suspected DWI. Not only did the driver imply his or her consent to submit to these tests at the time of application for a driver's license but the police may also impose upon the driver to submit to these tests if they believe it is necessary.
Then what should a driver do if pulled over for suspected driving while intoxicated. Simply put – even if you have only had one or two drinks it is most likely in your best interest to still refuse to submit to a breathalyzer test – in the end this may be your best and only defense for several reasons. First, although the legal limit for alcohol in the bloodstream is 0.08 – if an officer believes you are a danger on the road they may still arrest you for impaired driving. While no statistics are available – the number of persons who are sent on their way after a breathalyzer test that registers a BAC of less than 0.08 but above 0.00 – is probably small at best.
Second, it is your right to guard against improper search and seizure. When an officer says 'welcome to the no-refusal' weekend my reply is 'Just Say No'.
"David pushed the case and on the day of trial the prosecutor dismissed the case, and I did not loose my DL!"