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About DWI Tests

By Our San Antonio DWI Lawyer

You no doubt seen signs and other advertising informing citizens that there is a “No Refusal” policy in place for DWIs. This information has misled many citizens to believe they do not have the right to refuse field sobriety tests, breath tests, or blood tests. This could not be further from the truth. Every citizen has the right to refuse all of these tests and it is in their best interests to refuse.

When a citizen refuses to take a breath or blood test, the police can request a search warrant be issued to require the blood test. Although it is likely the search warrant will be granted, thereby requiring the citizen to submit to a blood test, it is still in your best interest to refuse to voluntarily submit to a breath or blood test. It is important to understand that if the warrant is issued for the blood test, you must submit to the blood test without resisting it. Resisting the blood test after the warrant is issued will result in the separate criminal offense of resisting a search.

Breath Tests

If you are accused of DWI or any intoxication offense, you should refuse to submit to a breath test whether you have had any alcohol at all prior to being stopped by an officer. Just because the officer tells you that there is a no refusal policy, it does not mean you must submit to a breath test. Refuse all breath tests, whether they are requested roadside, at the police station, or in the magistrate office.

Even if you have already submitted to a breath test, it is not too late to fight. The validity and accuracy of these tests have been successfully challenged in court. Not only is the unreliability of the breath test machine a critical aspect of your defense; every step of the way from the time an officer requests you submit to the breath test should be closely and aggressively reviewed.

The unreliability of the breath test machine can be the result of the machine’s internal parts, maintenance issues, operation of the machine, and inaccuracy of measurement solutions used in the machine.

The breath test machine readings can also be significantly affected by other factors including your own body temperature. The higher your body temperature, the higher the reading will be, which can result in a BAC reading over 0.08 when your BAC is actually below 0.08. Other factors such as dental work and your overall health can also cause a higher reading than is accurate.

You have the right to refuse the breath test in every case and you should refuse.

Blood Tests

Just as a citizen can refuse to take a breath test, you can also refuse to consent to having your blood drawn. You should never consent to having your blood drawn. Whenever there is a no refusal policy in effect, the police can get a search warrant to have your blood drawn without your consent.

However, do not consent just because the officer tells you they will just get a warrant and make you give blood. Require the officer to go through the process of obtaining the warrant. Once a warrant has been obtained, do not physically resist the blood draw or you could be charged with a Class A misdemeanor for resisting a search on top of the DWI charge.

By refusing to consent to a blood draw, you force an officer to follow specific procedures to get the search warrant for your blood. A warrant can be challenged and, if done incorrectly, the blood draw may be thrown out.

No matter what, a blood BAC result can be fought in court. It is a misconception that a blood test is irrefutable. In fact, many juries have found them to be unreliable and returned Not Guilty verdicts after learning the facts of a blood test.

It is imperative that you have a San Antonio DWI attorney who can aggressively defend against a blood test.

Field Sobriety Tests

There are two different kinds of field sobriety testing formats used by law enforcement officers: Standardized Tests and Non-Standardized Tests. However, all of the tests focus on balance and divided attention ability. Divided attention is the citizen’s ability to listen to a lengthy, detailed list of instructions while performing balancing or body position exercises at the same time. Then, the citizen is required to carry out all of the listed directions perfectly, allowing for only two to three mistakes on each of the tests.

Standardized Field Sobriety Tests

  • Horizontal/vertical gaze nystagmus (HGN\VGN)
  • Walk and turn
  • One leg stand

Non-Standardized Field Sobriety Tests

  • Fingers to nose
  • Hand pat exercise
  • Counting backwards
  • Counting fingers in a pattern
  • Reciting a portion of the alphabet

Non-Standardized tests can be administered at the discretion of the officer. There are no set instructions for these tests which the officer must follow.

If you have any questions or concerns about these tests or how we can help you, call us today at (210) 361-7322 and schedule a free consultation with our DWI attorney in San Antonio.

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