DWI First - No Test
If you have been arrested for a DWI first offense and have refused breath and blood testing there are a number of issues to consider. The faster you can get a Conroe DWI lawyer on your side the better your chances of beating a DWI in Montgomery County or Harris County become.
What happens if I refuse breath and blood testing?
The first thing that may have happened is that the officer may have gotten a blood warrant signed by a judge to take a sample of your blood for forensic testing. This is a grey top tube and typically officers enlist the help of a nurse or phlebotomist. Officers will collect two samples and send them to a lab for testing. Testing can take between 1 - 9 months depending on the backlog.
The second thing that is going to happen is the Department of Public Safety will give you and your lawyer 15 days to request a hearing before they suspend your license. If you don't get the help of an attorney quickly then you will lose this opportunity to contest the driver's license suspension based on your refusal.
A final lesser known consequence of refusing to take a breath or blood test is that you may become ineligible for pretrial diversion. In Montgomery County, the District Attorney's office has a policy where you cannot be granted a pretrial diversion if you have refused to cooperate with police by submitting a sample.
What happens at the hearing to suspend my driver's license for a DWI?
When you request a hearing within 15 days of your arrest you may subpoena the officer to testify and gain valuable information during a cross examination. The proceedings are recorded and the answers that the officer gives may be used against him at trial later on. If the officer fails to appear at the hearing you may be able to save your driver's license from being suspended. However if the officer took a sample of your blood the license may be suspended if the laboratory determines that the sample contained an alcohol concentration greater than 0.08. This is similar to if you consent to blood and the laboratory determines the concentration. At that point you have 20 days from the receipt of a letter that comes in the mail. It is important to keep your address current with DPS so that you don't miss important deadlines related to your DWI.
How do you beat a DWI where you refused breath and blood testing?
One thing your attorney has to deal with in a case where you have refused testing is the argument from the prosecutor that a refusal is evidence of a guilty mind or conscience. Rebutting this argument begins in jury selection which is formally referred to as Voir Dire. The jury should be educated on the rights of a client to remain silent and the right that everyone has to decisions about their own body. There are many reasons why someone may refuse a breath or blood test. For example they may be afraid of needles and may be justifiably skeptical of the accuracy of breath testing instruments or the conditions under which the testing was going to be conducted. Most breath testing instruments are kept inside a jail facility and not in a laboratory. If a warrant was obtained and a blood sample was taken then you can still attack and win your case.
Until recently you could not legally be offered a deferred adjudication probation that ends in a dismissal of the charge and eligibility for a non-disclosure. Prosecutors have been offering other programs like pre-trial diversion for many years which allow someone to comply with certain conditions and pay a fine in order to earn a dismissal after satisfying the conditions. Depending on the county and jurisdiction in which you are charged pretrial diversion may not be available to someone who has refused a breath or blood sample. Having an experienced lawyer who understands and cares about the direction of your life and career is essential to successfully navigating the aftermath of an arrest for DWI. Finally you can put the lawyers for the State to the test and force them to prove the charges to a jury "beyond a reasonable doubt." The standard of "beyond a reasonable doubt" is the highest burden of proof under the laws of the State of Texas and a conviction requires unanimous vote of all 6 jurors in a misdemeanor trial.
What is the punishment for a first time DWI with a refusal?
A DWI with an alcohol concentration of between 0.08 and 0.14999 is a Class B Misdemeanor with a maximum punishment of 180 days in jail and a $2,000 fine.
If the blood result is 0.15 or greater then the offense becomes a Class A misdemeanor with a maximum punishment of 365 days in jail and a $4,000 fine.
There is also a penalty called a State Traffic fine of $3,000 for first time DWI offenders.
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