Will Refusing A Breath Or Blood Test Aid In Defending Against DWI Charges?
The fact that you refused to voluntarily give a breath sample is something that is admissible against you in a trial for driving while intoxicated. The prosecutors can argue that they can make a reasonable inference about why you refused. In their closing arguments, the prosecutors will say that the reason why you refused to give a breath test was because you knew that the results were going to be incriminating and that they would have proved that you were in fact intoxicated. Refusing a breath test isn’t necessarily helpful for you, but in some cases, it might be. If you are the kind of person that isn’t obviously impaired even after drinking, then the fact that you refused the test and they don’t have a blood alcohol concentration level may be extremely helpful.
On the other hand, some clients refuse the blood test even though they only had one beer. I always say, “If you only had one beer, why did you refuse the test? It probably would have shown that you were under the legal limit!” They say, “I’ve always been told that those machines are not trustworthy.” Our advice to clients has changed over the years. Back before they used to do search warrants and mandatory blood draws, pretty much every criminal defense attorney advised their clients not to give a breath test if asked to do so.
Now that everybody is getting their blood drawn involuntarily, our advice has changed. We actually recommend to our clients that if the officers are going to get a warrant then they should take the breath test because the breath test testing device is much less accurate than the blood-testing device. The blood-testing device is capable of producing the same results and testing the same blood over and over again whereas the breath testing device is going to give you a different reading almost every time you blow into it. The lack of precision in that testing instrument makes it a lot easier for us to defend against breath test results than it does against blood test results.
If you are going to be way over the legal limit, then it may be helpful for you to refuse the breath test. If you are going to be under the legal limit, then it might actually be harmful for your case because we might have had evidence to prove that you were under the legal limit and you didn’t give them that evidence.
There has been a recent development where you may qualify for a pre-trial diversion program. This is an option to get your case dismissed following some sort of supervised probationary period. In order to be eligible for these programs, you have to have given a breath test voluntarily. While our advice has changed from “do not blow” to “blow if they are going to get a warrant,” the question of whether it will be helpful or hurtful to agree to a breath test may depend on the independent factors in your particular case. To more adequately assess how you performed on your field sobriety tests and whether your decision to give or not to give a breath test is going to affect the outcome of your case, we encourage you to contact us for a free consultation.
For more information on Breath/Blood Test Refusal In A DWI Case, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 601-0009 today.
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