How to Beat a DUI Refusal
After being caught for driving under the influence (DUI), drivers who resist a legally authorized blood alcohol content test (BAC) may face legal consequences. Failure to comply with a chemical BAC test ordered by the court is known as a DUI refusal, which can result in jail time and a license suspension.
Several drivers in Fort Worth, TX, question whether they can overcome a DUI refusal charge. Contact Sparks Law Firm today to discuss legal options for dealing with a DUI refusal. Let us start preparing for your case right away.
Can a DUI Result in Criminal Charges?
It's critical to understand that in Texas, refusing to take a breathalyzer test can be considered a criminal offense. The legal consequences of rejecting a BAC test after a DUI arrest are detailed in Vehicle Code Section 23612. If a driver refuses to take a breath test, they may face the following penalties:
If it is a first refusal, a one-year license suspension is imposed.
When it comes to a second refusal, a two-year license suspension is imposed.
If consecutive refusals are involved, a three-year license suspension is imposed.
Moreover, if a driver is charged with a DUI in court after rejecting a BAC test, time might be added to their sentence. In most cases, a refusal enhancement results in a couple of days in jail being added to the sentence. This is on top of the jail time you might receive if
What Regulations Govern BAC Testing?
One must be aware that after being arrested for a DUI, all drivers are legally required to take the BAC test. In this circumstance, driving in Texas suggests that the individual has given "implied consent" to take the BAC test.
Nevertheless, preliminary alcohol screening tests (PAS) are not necessary for all drivers. In some situations, one has the legal right to refuse the PAS test and a field sobriety test prior to detained. It's important to note that if you're in the following situations, you need to complete FSTs and PAS tests:
On DUI probation
Under the age of 21
People over 21 who aren't on DUI probation are not charged with a DUI refusal if they refuse an FST or a PAS test. Criminal defense lawyers can assist people in reviewing the specific DUI testing laws.
Methods to Beat a DUI Refusal in Fort Worth, TX
A DUI attorney in Fort Worth can assist in avoiding a DUI refusal enhancement. After one has been arrested, their attorney can immediately prepare to analyze the facts of the case.
Contesting What the Police Officer Observed After the Stop
Police officers always make a note of any observations that they suspect indicate drug or alcohol impairment. They adhere to a set of rules described in a report, such as an Alcohol Influence Report. Bloodshot or watery eyes, the smell of alcohol, slurred speech, and wobbling while standing are common observations. In the case of a claim of proof of impairment based on bloodshot or watery eyes, it might be argued that these symptoms can be triggered by a range of things other than drugs or alcohol, such as exhaustion, contact lenses, illness, smoke, lack of sleep, and so on.
Fighting an Illegal Stop or Seizure
Unreasonable seizures and searches are protected by the Fourth Amendment of the United States Constitution. When a police officer detains a person, a "stop" of a vehicle occurs. In most cases, a driver is detained when he or she notices that the officer's lights are flashing and that the person is no longer able to drive. There are numerous concerns that can arise when a driver of a car is stopped or detained. To be regarded as a valid and legal stop or detention of a driver, the police officer must have possessed evidence leading him to believe that the driver had done or was committing a criminal or a traffic law infraction. The detention or stop of the car was illegal if the police officer didn't have reasonable suspicion.
Contesting the Field Sobriety Tests
When an individual is believed to be being under the influence of alcohol, they are subjected to field sobriety tests on the side of the road. The following are some of them:
Horizontal Gaze: Nystagmus is a condition in which a person moves a pen from side to side in front of their eyes. The examiner is trying to see if the person's eyes move and if so, how swiftly they move.
Walk and Turn: In this case, a person is instructed to take nine steps in a straight line, turn about, and return to the beginning place.
One Leg Stand: A person is encouraged to lift one of their legs six inches off the ground while counting and keeping their eyes closed.
Finger to Nose Test: The driver is asked to close their eyes and follow the police officer's instructions by touching the tip of their nose with his or her right and left forefingers alternately.
To combat the police officer's findings, the best practice is to carefully study those findings, which need to be written on a report filed by the police officer who administered the Field Sobriety Tests. Each exercise's minute details are crucial.
Fighting Statements or Admissions Made by the Driver That the Police Officer Detained
Many people assume that a police officer must explain their rights to them. According to the United States Supreme Court case of Miranda v. Arizona and the United States Constitution, an officer is not compelled to read an individual's rights. The United States Supreme Court declared "Miranda Rights" in the legal case of Miranda v. Arizona, 384 U.S. 436, in 1966. According to the law, comments made in response to law enforcement questioning while an individual is in custody are only admissible in a criminal prosecution if the prosecutor can show that the subject was informed of their "Miranda Rights" before interrogation started.
The most important problem is the individual's right to consult with an attorney before being subjected to interrogation. Furthermore, the person's words can't be used against them in a criminal prosecution if he or she was not informed of their right against self-incrimination before the interrogation.
Contesting the Breath or Blood Test Procedure
The legal limit for breath alcohol or blood alcohol in Texas is 0.08%. If a person's breath alcohol or blood alcohol level is higher than 0.08, he or she is deemed to be guilty of DUI.
Keep in mind that even if the defendant's breath test results were above 0.08, the breath testing processes can be challenged and the case won.
Firstly, it is crucial to consider how long before the breath test the individual was detained. If three or four hours have passed since the breath test, the breath test is arguably inadmissible in court.
Secondly, the police officer doing the breath test must observe the individual for at least 20 minutes before administering the breath test to make sure that the driver has not put anything into their mouth, regurgitated, or done anything else that could influence the breath test.
Thirdly, the officer must obtain two valid breath samples that are within 0.020 of one other. Otherwise, the results of a breath test can't be used in a criminal trial.
Fourth, the police department and the Texas Department of Law Enforcement must perform monthly and annual maintenance on the breath testing machine. The breath test findings can't be brought into evidence in a criminal prosecution if the prosecutor can't prove that the required maintenance was performed.
Even though a blood test is believed to be the most accurate sort of test in a DUI case, it must be performed correctly in order to be accepted in court. One must consider the following, for example:
Unless there is a major bodily injury, an officer must obtain the driver's consent before administering a blood test.
The person drawing the blood to be tested needs to have the necessary qualifications, such as a trained paramedic or a nurse.
The blood must be preserved according to the rules that have been established.
After the blood is taken, the "chain of custody" of the blood needs to be properly followed.
Most people believe that if their blood alcohol level exceeds 0.08, they are inebriated. This is not the case. Most people can pass field tests at the 0.08 level without slurring their speech, staggering, or stumbling. They are just not inebriated, even if they are not sober. Different people are affected by alcohol in different ways. At 0.13 or 0.15, some people aren't even intoxicated, which is why we may often win the case if the driver refused to blow or we get the breath test tossed out of trial. If the state does not have one's blood or breath, they must prove that the driver is less safe to drive or that they are inebriated, which is sometimes difficult to demonstrate because the legal limit is so low and seemingly arbitrary.
Fighting DUI Cases Where the Drivers Refuse Blood, Breath, or Urine Tests
A police officer needs to read "Implied Consent" to a driver before administering a blood, breath, or urine test.
The purported refusal of a blood, breath, or urine test is not a legitimate refusal if the police officer does not inform the motorist of "Implied Consent" before the test.
Contesting a DUI Case Via the Right to a Speedy Trial
An individual who has been charged with a crime has the right to a quick trial. This means that, unless the person or his or her lawyer has decided to waive the right, the individual has the right to a trial within a specified time frame. In Texas, the period for a misdemeanor charge is 90 days and the time period is 180 days for a felony charge. If the stipulated length of time passes without the person surrendering their right to a quick trial or the individual's trial starting, they have the option of pursuing the case's dismissal.
Fighting DUI Cases Where There Is an Anonymous Report of Drunk Driving
When a police officer receives an anonymous report of erratic or drunk driving, he or she is legally unable to stop the car solely on the basis of the anonymous report. The police officer must make an independent observation of a legal infraction that conﬁrms the anonymous claim after identifying the car. If there is no such evidence, a Motion to Suppress Evidence due to an unlawful arrest should be filed and argued to the judge.
Negotiating with the Prosecutor to Contest a DUI Arrest
Each DUI case has a prosecutor assigned to it. The prosecutor evaluates the case in order to prosecute, much as an individual's personal counsel reviews the case and fights for that citizen's right. Obtaining all incident reports, the breath test card, a list of witnesses, the police patrol vehicle video, the Implied Consent Form, and more are all part of the inquiry. An experienced and professional attorney does everything necessary to persuade the prosecutor handling the lawsuit to drop the case or lower the charge to something less serious than DUI by identifying defenses and weaknesses in their client's case.
To know how much jail time will be served for 3rd DUI offense and how to avoid it, you will be needing the assistance of a good lawyer.
What Are the Consequences of Refusing to Take Tests if You're Pulled Over by the DWI?
Refusing to blow into a breathalyzer is perfectly legal, and it doesn't mean you're "guilty."
If one is stopped by the police, they are only required to give them the information contained on one's driver's license, the insurance information, and the driver's social security number. People can gently refuse to offer the authorities anything else they can use to file a case against them aside from these sources of evidence. Answering inquiries about where one has been, where they are going, whether or not they have been drinking, and even consenting to field sobriety tests are all part of this.
If one refuses to blow in a state with a "No Refusal" policy, they are arrested and taken to the police station for a forced blood draw. In Texas counties where "No Refusal" is rigidly enforced, cops are able to call a court at any time of the night or day to get a warrant for a blood sample.
One should express their disapproval of the blood draw orally, but they should be aware that opposing the police only results in the authorities holding the individual down and drawing the blood violently.
The police begin the process of suspending one's license once they have been arrested for a DWI. This is automatic; however, a DWI attorney can appeal it, putting the license suspension on pause until the appeal hearing.
One should contact a DWI attorney as soon as possible following their arrest (they can even function as a bail bondsman) so that they can commence work on a license suspension and DWI accusation.
Are There Any 'No Refusal' Laws?
What began as "No Refusal Weekends" has evolved into a year-round policy in several counties. Refusing to take the test merely results in the police obtaining a warrant for a blood draw in these areas.
It is crucial to note, though, that one is only obliged to blow into the breathalyzer at the station, not the one at the scene. In fact, the evidence obtained through portable devices is not acceptable in court.
Additionally, it's also worth noting that "No Refusal" applies solely to blood or breath tests and not to other Standardized Field Sobriety Tests. Field sobriety testing should be avoided at all costs.
Why Should People Refuse to Blow?
Regardless of the consequences of declining to take a test, the DWI people recommend that you do so. The police are going to have evidence against you if you produce a breath or blood sample or do any of the field sobriety tests. Why would you want to assist the government in prosecuting you?
Additionally, the handheld breathalyzer is not as accurate as the desktop gadget that one is instructed to blow into at the station following the arrest. People do not want to furnish the authorities with evidence from an unreliable source if they end up having to give them access to evidence as per Texas' Implied Consent law.
However, this does not imply that the desktop breathalyzer is error-free.
Breathalyzers, contrary to popular assumption, do not test for the presence of drugs or alcohol. They actually look for any chemical with a methyl group in the molecular structure, which includes a wide range of chemical compounds other than alcohol. A breath sample might result in a false positive if one is diabetic with low blood sugar, a smoker, or even if they previously painted a room.
"Okay," you could respond, "but if I know I am sober, isn't it okay to take the test?" That is not always the case. People can blow below the legal limit and yet be charged with a DWI based on the circumstances (and the police officer who stopped you).
Even if the blood alcohol level was above the legal limit, there are options to challenge the results of the blood alcohol test. When it comes to preserving the sample, testing the specimen, and calibrating the machine, there are several guidelines to follow.
Handling Your DUI Charge with a DWI Attorney
Client recommendations are crucial to efficient lawyers, and they understand that fairness and results take time. A professional lawyer or assistant district attorney spends time studying and reviewing the case, as well as gathering videos, medical documents, police reports, and witness statements.
Time spent sitting in court and returning to court again and again in the hopes of getting a favorable bargain or a dismissal that is just around the corner is not the position you want to be in. Inquire about how many DUI cases your lawyer has taken to court and won. You should be concerned if they have never done so or if it has been more than a few years.
The attorneys at Sparks Law Firm can assist with DUI charges and DUI refusal enhancements. Our team of DWI attorneys in Fort Worth is experienced in dealing with DUI charges all around the state.
You can count on us to fully investigate the charges. We're prepared to take action to lower the fees. In some cases, we might be able to get a DUI dismissed. Allow us to assist you with your criminal case right now.
Contact us today to learn more about the best way to handle DUI and BAC refusal enhancements and to get a free case evaluation.
Contact Us Today for a Free Consultation Regarding a DUI Refusal
Although refusing to take a test might lead to a license suspension or a forced blood draw, we recommend refusing to take the test and making it known that you do not agree to the forced blood draw.
While "No Refusal" is a way of life in many states, there are still certain states that do not follow this policy. To make it seem that you are "cooperating" with law enforcement by submitting a blood or breath sample, you are simply supplying them with more information to use against you in front of a judge.
It is critical that you call an expert DWI attorney as quickly as possible following an arrest, such as Sparks Law Firm. An experienced DWI lawyer may get you out of jail, prevent your license from being suspended, and defend you against all DWI accusations brought against you by the state. Even if you are going to serve jail time for the 4th DUI offense, having a good lawyer can help prevent that or at least reduce the charges.
Don't put your trust in just any DWI lawyer to keep you out of jail. Choose a lawyer who has devoted his career to DWI research, training, and defense.
In some situations, you can overcome a DUI refusal by enlisting professional assistance as soon as possible following your arrest. Now is the time to work with Spark Law Firm's experts. To get a free case evaluation, call our DUI lawyers in Fort Worth immediately.
Contact us today or fill out our online contact form to learn more about how to beat DUI refusal charges.