If you’ve spent any time near bars or nightclubs, chances are you’ve seen the phrase, “Do Not Blow!” plastered everywhere from billboards and posters in the bathroom to koozies and pens being passed out at the bar.

Perhaps you don’t fully know why you shouldn’t blow, but since it’s coming from a law firm, it must be good advice, right? While refusing a breathalyzer in Texas used to be a solid strategy, things have changed. If you find yourself pulled over after a night on the town, you might do well to reconsider that old slogan and actually take the breath test.

This shift in advice stems from recent legal changes that have introduced more severe penalties for refusing a breathalyzer, including automatic license suspension, making the refusal potentially more damaging than the results of the test itself. Plus, a blood test could end up getting you in trouble for more than that drink you had. Our advice? Just blow. Here’s more on why:

For an overview of why “Do Not Blow” is outdated advice, check out our quick but informative video by Mark Thiessen:

Why do lawyers tell you not to blow?

Historically, lawyers recommended refusing the breathalyzer test based on the belief that it minimized evidence that could be used against you in court. The rationale was simple: without concrete BAC (Blood Alcohol Concentration) levels, the prosecution’s case would be weaker, relying more on subjective observations of impairment such as slurred speech or failed sobriety tests. 

However, this strategy hinges on a critical assumption that you’ll actually be able to avoid a BAC test, and that this avoidance leaves more room for legal maneuvering, possibly leading to reduced charges or even acquittal. There’s only one problem: refusing a breathalyzer does not get you out of taking a BAC test. 

Now, major counties like Harris County treat every day like a no-refusal weekend and will issue a warrant every time a breath test is refused. If you’re suspected of driving while intoxicated, a warrant for a blood test can be issued easily and quickly. 

While both blood and breath “sciences,” and frankly all field sobriety tests in Texas, are riddled with problems, juries are more likely to believe that the scientific process of a blood test is much more sound than those of a breath test, leaving less room for reasonable doubt.

Learn more: What is a chemical test used to measure?

Is it better to blow or not? Why breath tests are the safer option.

Can you refuse a breathalyzer test? Yes, you can. The real question is, should you refuse a breathalyzer test? No, you should not. Here’s why: 

  1. Legal Compliance: Submitting to a breath test aligns with the implied consent laws prevalent in many states, thereby avoiding immediate and automatic penalties for refusal, such as license suspension.
  2. Reduced Penalties: In some instances, individuals who comply with the breath test might face lesser penalties compared to those who refuse. It’s not necessarily that compliance with the breath test is viewed positively by a judge or jury, but that refusal is almost always viewed negatively. 
  3. Evidence for Defense: We have to say it here. A breath test is less reliable than a blood test, and a breathalyzer result that is close to the legal limit offers a potential defense strategy if you have an attorney that knows the science well enough to question the accuracy of the test.
  4. Avoidance of Additional Charges: Refusing a breathalyzer test can lead to additional charges independent of DWI charges, complicating one’s legal situation and potential penalties. 

    Blood tests are typically sent off for drug screenings after they have been analyzed for alcohol concentration. Even if you don’t use any illegal drugs, this could still leave your case in a dangerous spot. Many medications have a synergistic effect when combined with alcohol. This means that, in theory, the mixture of alcohol and prescription drugs in your system may be argued to be more intoxicated even under the legal limit.

    Even worse, the State of Texas will try to say that common prescription drugs like Adderall and Ritalin are intoxicating on their own. In Harris County, any blood test under 0.12 will be sent off to a lab in Austin and tested for drugs. So even if your BAC was below the legal limit, the drug analysis component of the blood test could still leave you stuck with a DWI charge!
  5. Mitigation Strategy: For those whose BAC is significantly over the limit, taking the test and facing the results can be the first step in a mitigation strategy that includes demonstrating remorse and willingness to participate in educational or rehabilitation programs, potentially influencing sentencing.
  6. Option For Pretrial Diversion (PTD): In a PTD, you are allowed to satisfy a series of criteria similar to probation in exchange for your case to be dismissed before it goes to trial. In Montgomery County and other parts of Texas, the District Attorney will only offer a Pretrial Diversion program if the accused submits to a blood or breath test.

In other words, if you went the “Do Not Blow” route, you are ineligible for the PTD program, leaving you with the decision of trial or accepting a plea deal.

Disclaimer: if you blow 0.000, they could put you through a Drug Recognition Evaluation, but you do not have to agree to do that evaluation.

The takeaway? Current breath tests measure alcohol intoxication somewhat inaccurately and cannot detect drugs or medications. Taking the breathalyzer is almost always a good idea — and even if your goose is cooked, it can help your DWI lawyer in Houston make the most of a bad situation. 

How inaccurate is a breathalyzer test?

Can a breathalyzer test be wrong? Yes! Although Texas is known to take law enforcement seriously, it’s hard to believe it when you look into the pieces of junk they use to determine intoxication. On that note: ladies and gentlemen, allow us to introduce the Intoxilyzer 9000 breathalyzer, which was delayed in being implemented because of software issues. These machines are currently rendering false positives for natural human conditions such as diabetes or ketosis.

Juries tend to be much more skeptical about the results of the Intoxilyzer 9000. And it’s this underlying reasonable doubt that tends to be very helpful as they deliberate their final decision.

Can you deny a breathalyzer in Texas?

By this point, it’s pretty clear that it’s better to blow than bleed. But let’s say that you just got pulled over and you’re thinking, “shoot, my BAC is definitely over the legal limit” and you expect it to be up around 0.15. Do you have to take a breathalyzer test? The short answer is no, you don’t have to take it. In fact, this is the only circumstance in which we recommend denying a breathalyzer test.

In Texas, a 0.15 BAC or higher enhances a DWI to a Class A misdemeanor, doubling the range of punishment to $4,000 and one year in jail. With higher stakes on the table, the old frat house legal advice about sobering up on your way to the station might actually pay off. So, what happens if you refuse a breathalyzer?

By refusing, your license will automatically be suspended for 180 days (assuming that you haven’t refused a test within the past five years). However, the average human body eliminates about 1 drink or (0.02 BAC) per hour. So if you’re right at 0.15, and it takes the cops another hour and a half to get you to the station and through blood testing, these results could theoretically put you back in the misdemeanor Class B category. 

Plus, if you hire a Super Lawyer who’s board certified in DWI, they may be able to get your charges dropped altogether and reinstate your license anyway.

Call Thiessen Law Firm to fight your DWI charges.

“Do Not Blow,” the popular slogan which encourages refusing a breathalyzer in Texas, used to be perfectly valid legal advice, but times have changed, and that old saying could make your situation much worse these days. If you’re pulled over on suspicion of DWI, refuse the biased roadside coordination exercises and agree to take a breath test. The resulting night in jail will be much less painful than a DWI conviction.

If you find yourself facing the wrong end of a breath test, stay calm, don’t say anything that will incriminate you and call Mark Thiessen and the team at Thiessen Law Firm. With trial-tested defense strategies and a passion for justice, they will defend you tirelessly at every step of your case. 

As a lawyer-scientist, Mark has mastered the science behind intoxication analysis and has used this knowledge to successfully fight both blood and breath tests in court. If anyone knows how to beat a DWI in Texas, it’s him.

Don’t let a breathalyzer test dictate your future. Schedule your free consultation with us today by calling (713) 864-9000 or contact us online.

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Thiessen Law Firm

Mark Thiessen is an aggressive trial lawyer best known for his devotion to justice for his clients and high rank as a DWI Super Lawyer in Texas.