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  • Writer's pictureBrian Foley

Should you refuse a breath test?

Updated: Feb 20, 2021

For many years lawyers advised clients not to take any tests when pulled over for Driving While Intoxicated. Now in Montgomery and Harris County, and all across Texas, prosecutors are waking up Judges at all hours of the night to seek warrants to collect the blood of citizens accused of DWI. Jurors will sometimes mistakenly trust blood results because of familiarity with blood work conducted for Medical reasons. (This is a totally different forensic blood draw and is nothing like a medical draw.) But the fact remains that jurors have likely never encountered the Intoxylizer 5000 or 9000. And most jurors have never been to the doctor and had someone ask them to blow into a machine before making a life altering decision. For this reason if the State is going to seek a blood warrant regardless of the decision to exercise your constitutional right to refuse it may be advantageous to allow them to collect a breath sample which can also be attacked in court.

No matter what circumstances you may find yourself in, always try to find a safe way home when drinking. Always call an experienced trial attorney as soon as possible if an officer has asked you to make this difficult decision of breath or blood.


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation. For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney. For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.

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