What if you refuse a BAC or can't perform the test?

If you were arrested for a DWI, the officer likely read you a script that started with “listen to me, I am about to tell you something important”. Let me break that script down for you.

What the officer is reading is a brief explanation of your rights under the Implied Consent Act. The Implied Consent Acts states that, if you are arrested under suspicion of DWI, you must provide a breath sample to determine the alcohol content of your blood. However, you can refuse to provide a breath sample, but this comes at a cost. If you refuse to blow into the breathalyzer, you will be charged with an Aggravated DWI instead of a simple DWI and will immediately lose your resident driving privileges for a year. (See explanation of the difference below). Additionally, refusing to provide a breath sample can be used to show your consciousness of guilt at trial, which is to say that you did not provide a breath sample because you knew that you would provide a positive breath score. However, in the scenario of a refusal, the district attorney will not have scientific proof of just how much alcohol is in your system.

Now what about blood? You have the right to refuse a blood test and will not face an increased penalty should you refuse. If you refuse a blood draw, the State cannot charge you with an Aggravated DWI due to that refusal. Officers primarily resort to asking for a blood sample when someone has been in an accident, is in the hospital, or cannot provide a breath sample for some other physical impairment. Most of the time, breath is requested, rather than blood.

Now, a recent change in the law allows officers to request a search warrant for your blood even if you refuse. The officer writes a warrant, which is reviewed by a prosecutor, and can be approved by a Judge. If such a warrant is approved, then the officer has the legal authority to have your blood drawn by an approved professional.

To sum this up, you can refuse to provide a breath sample, but at a cost. You can refuse to provide a blood sample because your consent is not implied under the act, but an officer can still get a search warrant to draw your blood for testing.

If you have any questions about your particular situation or would like to consult with an experienced criminal defense lawyer about the potential for getting your case dismissed, call Padilla, Montoya and Associates today at 505-717-2927.