Should I Take a Breath Test if Asked by an Officer?

Should I take a breath test if asked by an officer? I get asked this question all the time by clients, by friends, and by individuals looking for advice. The answer is, it depends.

My name is Eric Benavides and I’m a Texas criminal defense lawyer.

I want to talk to you today about taking a breath test.

Now I had a client of mine ask me recently, “if I get pulled over again for a DWI, you know if they ask me to take a breath test should I take it?” and the answer is, well it depends. If you’re in a place where it’s not a no refusal weekend, and they are not going to take your blood then you should not take it.

You should not take that breath test because why would you give physical evidence to the state to use against you when you have the legal right to refuse. Now the opposite is true if you’re in a county that’s no refusal or if it’s a no refusal weekend, and you know that they’re gonna get a search warrant and take your blood anyway. At that point it’s better to take the breath test.

Now the breath tests are machines. Machines are unreliable, juries think that blood is better, so the answer is it depends. But it’s just something that you have to
make a decision on based on what you know at the time.

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