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DWI - First Refused Breath and Blood
Listen to Board Certified Criminal Defense Attorney Brian Foley discuss Driving While Intoxicated offenses where the defendant has refused to provide a breath or blood sample in Houston, Texas.
(713) 703-1718
Hi, my name is Brian Foley, and I’m the managing partner at Houston Criminal Defense Attorneys, PLLC. We’re located at 310 Main Street in Houston, Texas. Today, I’m going to discuss a common crime—DWI First Offense—specifically, cases where there’s a refusal of a breath or blood test.
What is a DWI First Offense?
A DWI First Offense means driving while intoxicated. This is different from a DUI. In some states, DUI is used where we say DWI. It doesn’t mean you had just one or two drinks; it means you’ve had enough alcohol to affect your mental and physical faculties, or you have an alcohol concentration greater than 0.08. This can be measured through your breath, blood, or urine—though urine tests are very rare in DWI cases.
What is a Refusal Case?
A refusal case is when law enforcement asks you to submit to a breath or blood test, and you refuse. While you have the right to refuse, the state can argue to a jury that your refusal was because you were intoxicated, making it tricky to say you truly have that right.
The Field Sobriety Tests
Let’s walk through the process. If you’re pulled over in Houston by the police—whether it’s HPD, Harris County Sheriff, or another law enforcement agency—they’ll usually conduct field sobriety tests.
Horizontal Gaze Nystagmus (HGN): This is an eye test that checks for involuntary jerking of the eyes.
Walk-and-Turn Test: You’ll be asked to take nine steps in a straight line, touching heel to toe, then do a specific turn.
One-Leg Stand Test: You’ll hold one leg out, about six inches off the ground, while they observe for signs like hopping or swaying.
Based on these tests, if they believe you’re intoxicated, you will likely be arrested.
Refusing a Breathalyzer
If you refuse to do the portable breath test (PBT) on the side of the road, that’s not considered an official breath test refusal—the PBT isn’t admissible in court. What I’m talking about is after you’ve been arrested and they ask you for an official breath or blood sample. If you refuse at that point, it becomes a refusal case.
What Happens After Refusal?
If you refuse to give a breath or blood sample, the officer may choose to get a warrant for your blood. In Houston, this often happens at the Joint Processing Center (JPC). As a former prosecutor at the Harris County District Attorney’s Office, I regularly handled blood warrants for officers.
In some cases, officers may choose not to seek a warrant. I recently had a client who refused to give a sample after being told that was the best thing to do. In that situation, the police didn’t get a blood warrant, and now we’re relying on video evidence to determine whether the client appeared intoxicated, even though they likely weren’t.
Need Help with a DWI Refusal?
DWI refusal cases can be challenging, especially in Harris County. It’s critical to have an experienced attorney review your case and the evidence, including any videos. If you’ve been charged with a DWI First Offense in Harris County, give us a call at 713-703-1718, and we’ll help guide you through the process.
Texas Former Prosecutors
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