Former: District Judge l Federal Prosecutor l Chief Felony Prosecutor
If I am stopped for DWI in Austin, should I take a breath test?
It depends. In my view, the answer to this question is not as easy as many lawyers would have you believe.
A police officer investigating a DWI offense is not going to ask whether you consent to taking a breath or blood
test until after he has placed you under arrest for DWI. That means the officer has concluded that you failed the
standardized field sobriety tests (SFSTs--such as walk and turn, one leg stand, etc.). At that point in time you are faced with
a serious dilema. If you refuse a breath or blood test, it is a certainty that you are going to be booked into jail
for DWI. If you take the breath test--and pass it--there is some chance the officer will release you without filing
charges. If you give breath or blood--and score above the 0.08 legal limit--you have just supplied the government with
evidence against you that they otherwise would not have had. Confused? In other words, in my view, it is best to take the test
IF, AND ONLY IF, you are pretty darn certain you are going to score significantly below the legal limit of 0.08.
How do you estimate whether you will pass the test? As a general ball park rule, for a 160 lb. man, every beer
or (standard) mixed drink (this does not include Long Island Iced Tea, Flaming Dr. Peppers, Margaritas, etc.) raises that person's
breath/blood alcohol content (BAC) by 0.02. For the same hypothetical man, BAC falls (through elimination/absorption) at the rate
of about 0.02 per hour. However, you must remember that there are many, many variables such as weight, metabolism, food content
in the stomach, time, etc.
If you want to calculate estimates for BAC based on certain variables, click here.
If you choose unwisely and provide a breath or blood sample that contains more alcohol than the 0.08 limit allows, you will
have substantially increased the evidence against you and possibly put yourself in the situation of having to hire an expert--in
addition to your attorney--to attempt to discredit the intoxilyzer instrument at trial. You will have made your defense much more
difficult and, possibly, more expensive.