Breath Test, Blood Test or NO Test: The Officer's Choice.
Texas Law states that the arresting officer has the authority to offer a breath test, a blood test or no test at all. The officer had absolute authority as to which test, if any is offered. A person suspected of DWI cannot choose which test, breath or blood, to take. Also, a person cannot demand that a test be given. The law states that a person's due process rights are not denied if the officer refuses to give a breath or blood test.
Here is some helpful law:
Graham v. State, 710 S.W.2d 588 (Tex. Crim. app. 1986). The Court found that there was no requirement is statutory law, in the State constitution, or in the due process clause of the Federal Constitution, that a person who has been arrested for driving while intoxicated has the absolute right to request and be administered at State expense, any kind of test that might reflect whether he is intoxicated.
Johnson v. State, 913 S.W.2d 736 (Tex. App.--Waco 1996, no pet.). Officer's failure to give defendant a breath or blood test did not deny his due process rights. Neither Implied consent statute nor regulations require a sample of breath or blood be taken from person arrested for driving while intoxicated.
Coggins v. State, 160 S.W.3d 177 (Tex. app.--Texarkana 2005, no pet.). Officer gets the right to choose which specimen, if any, to offer.
