The decision on whether or not to take a breath or blood test is an important one. Because it is so important, most people believe that you have the right to talk to a lawyer before you make the decision. Unfortunately, that is not the case.

The law in Texas has always been that you don't have the right to consult with a lawyer before deciding to take a blood or breath test. Not only do you not have the right to talk to a lawyer, if you ask for one, but the state can also use that at trial.  They then use that request to argue you must have been drunk because a sober person would just take the test and assume they would pass.

The main reason for this is that even though you have been placed in a police car, and taken against your will to the police station, jail, or some other location, the request to take a breath test is not considered “interrogation.” Miranda warnings are only required when someone is in custody and being questioned. Simply asking you to take a breath or blood test is not questioning, so warnings are not required.

Another reason is that when you accept a driver’s license, you give implied consent to submit to a breath or blood test on request. While you can refuse to take the test, the refusal has consequences. That’s a subject for another post, but just know that if you refuse to take the test, your license is going to be suspended; and for a longer time than if you had taken the test and failed it.

There’s also a practical reason. Most people don’t have a lawyer on call, so it’s going to take some time to find one. And since alcohol steadily dissipates, the State basically “loses” evidence the longer the delay.

Not all States take the same position. The Supreme Court in Hawaii recently held that an individual has the right to consult with an attorney before they take a blood or breath test.  To my knowledge, they are the only State to hold that. And as with most court decisions, it’s not as favorable as it appears. You still must show the failure to allow you to talk with a lawyer affected your decision. The defendant couldn’t do that, so he lost anyway.

The take from this is that you don’t have the right to talk a lawyer, so don’t ask. You’ll just give the State something else they can use against you.

If you want more information on DWI law, request a FREE copy of our DWI Survival Guide. If you've been arrested for driving while intoxicated and need to talk to a lawyer, fill out our contact form, or give us a call at 254-296-0020.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.