How will refusing to give a breath of blood test affect me at trial?
If you are charged with DWI in Texas and refuse to give a breath or a blood test it could have certain consequences at trial. Under Texas law, if you refuse a request from an officer to provide a breath or blood specimen then the State may inform the jury, during trial, that you refused to take a test. The jury then can decide how to evaluate the fact that you refused to take a test.
As you might expect, the State will argue that you did not take a test because you knew you would fail. Then, the State will ask the jury to hold the fact that you refused a test against you during their deliberations.
Generally speaking juries very rarely will find a person guilty of DWI simply because they refused to take a breath or a blood test. There are many arguments that can be made to rebut the State's contention that you refused to take a test because you thought you would fail. For instance, the law does not require a person to submit to a blood or breath test. You may refuse one for any reason. Also, many people refuse to take a breath test because they do not trust a government machine, cannot retest the machine or have been told never to take a breath test.
The two most common ways to rebut the State's argument about a refusal is to point out to the jury that EVEN IF YOU PASSED a breath test you would have been charged with DWI anyway. For an explanation click here. Finally, the state can get a warrant for you blood if you refuse a breath test. Therefore, if the State wanted they could have provided a sample for the jury. Since police rarely follow up on warrant threats this is usually a good argument for the defense to make to the jury.
Follow the link below for a recap on Texas Law concerning a refusal to give a breath or blood specimen.
Harrison v. State, 766 S.W.2d 600 (Tex. App.--Fort Worth 1998, no pet.) Absent showing of casual connection between refusal of defendant accused of DWI to give breath specimen and fact that civilian employee, rather that peace officer, gave warning for such refusal, evidence of defendant's refusal to take a breath test was admissible.
Mody v. State, 2. S.W.3d 652 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). The State is not required to show why the defendant refused the test in order for the refusal to come into evidence.
Malkowsky v. Texas Dep't of Pub. Safety, 58 S.W.3d 873 Tex. App.--Houston [1st Dist.] 2001, pet. denied). Failure to produce an adequate breath sample based solely on one's voluntary intoxication is a refusal under section 724.032 because it is "an intentional failure...to give a specimen." Public policy does not allow a person to benefit from his intoxication.
