What if the Officer Forced Me to Take a Breath Test?

Stephen: Hello, I’m Stephen Hamilton, board certified criminal defense attorney practicing in Lubbock, Texas and the South Plains area. Today’s video clip is what happens if the officer forced me to give a breath test when I was arrested for a DWI? The officer can’t force you to give a breath test. He’s not going to put your mouth on the tube and put his gun up to your ear and say blow. What he’s going to do is he’s going to tell you basically and read you what we call the statutory warnings. So they got to tell you, “Look, you’ve been arrested for a DWI and we are now requesting a sample of your breath,” if that’s what the officer chooses, and then the rest of the statutory warning talks about what happens if you don’t give it, it can be used against you in a courtroom, those type of things, but ultimately you have to make the decision. We called it implied consent, do you voluntarily give your breath sample?

Stephen: If the officer has promised you something or told you something that he would do to you if you don’t give a breath sample, then there is at least an opportunity to challenge the breath test in court. What do I mean by that? Okay, if the officer tells you, “If you give me a breath sample and you’re under the legal limit, I’ll take you home,” that he is not allowed to do because he’s basically made you a promise. So if that’s the case, we can challenge the breath test results and try to exclude them from any trial.

Stephen: What about the flip side of it? If he tells you, “If you don’t give me a breath sample, I’m just going to take blood,” that also may be excluded. Now, there’s different laws dealing with who has to give a blood sample, in other words, if you’ve had two prior felony, or two prior DWI convictions, or if you had a child under the age of 15 in the car, or if there’s an accident or a death, those may all apply dealing with what we call a mandatory blood test. But let’s say you just have a first offense DWI, never been in trouble before, you refuse to give a breath test and the officer says to you, “Well, I’m just going to have to go take your blood if you don’t give me a breath test.” At that point in time, that statement from the officer may be used to exclude the breath test. That’s a legal issue. We’ve got a lot of details that we’d have to talk about. Call me at the office, (806) 794-0394.

Stephen: Come in and set up a time. Let’s go through what actually happened in your particular case, what did the officers say to you? What evidence can we find in that case that he actually said that made you a promise or made you a threat? I hope you enjoyed today’s video. If you did, do me a favor, press the like button down below, either on Facebook or YouTube, so your friends and family can hear this important information as well. Maybe they’ll find it useful. Come in and see me, I’m Stephen Hamilton. Have a great day.

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