One of the especially confusing things that happens during the course of a DWI arrest in Texas comes up at the point the defendant must decide whether or not to submit to a breath or blood specimen analysis.

Most people believe that since they are being asked a question (i.e. “Will you take a breath test?”) that they have a legal right to talk to a lawyer before answering the question. Unfortunately that is not the case.

In fact, insistence on speaking to an attorney before making the decision will lead the officer to mark on the DIC paperwork that you refused to take a breath test. This legal analysis was upheld in Texas Dept. of Public Safety v. Raffaelli, 905 S.W.2d. 773:

After completion of this test, the officer read Raffaelli a statutory warning regarding the possible penalty if Raffaelli refused to give a blood or breath specimen. The officers in the room asked Raffaelli for a breath specimen. Raffaelli insisted on speaking with his attorney. The officers again requested a breath specimen, and again Raffaelli asked for his attorney. The officers treated Raffaelli’s failure to consent as a refusal.

The Court of Appeals upheld the license suspension in that case, for the longer suspension period. Other Courts of Appeal in Texas have followed that lead as well. A recent commenter wrote:

I am totally flabbergasted at the DWI criminal system…

Right now I am charged with DWI in NC along with a refusal charge. The officer and I were not getting along at all. There was a lot of yelling and screaming which basically came about through his total disrespectful tone and attitude towards me. When asked if I wanted a witness to the breath test I answered, "Yes, I would like an attorney."

At that point he slammed the phone book down on the table. I simply stated, I don’t know anyone around here! He then went back to the desk took out a piece of paper and began writing. 

After he was done he told me to come with him, which I did. He brought me in front of the magistrate and stated, "We have a refusal here”. This cost me a one year revocation of my license which I am fighting, and I have yet to go to court for the DWI charge. 

He never even gave me SFST’s. The alcohol he smelled came from a topical medication which contains 67% ethanol. I had not even had a drink that day! Seems police have absolute power when it comes to DUI anymore thanks to MADD.

While his particular case was in North Carolina, the same thing is true for folks right here in Austin and across Texas.