Keith Gore, Lawyer Keith Gore, Lawyer
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Taking a breath test: Your options

Living in Texas, you enjoy spending time out with friends. You go to the city, hang out at local hot spots and go to local homes for barbecues and parties.

One of the things that can catch some people off guard is just how fast they become intoxicated when drinking. Many don't plan for a way to get home, so unless someone stops them, they make the error of getting behind the wheel believing that they're safe to drive. That's not always the case, and many of these people get pulled over by the police.

If you're stopped for a DUI, do you have to give a breath test?

By law, the officer can ask you for either a blood or breath test. As the person giving the sample, you don't have a right to decide which of those samples you give. Instead, the officer dictates if there is a reason for one or another.

If you refuse to take the test, you're in violation of the implied consent law. For those who are stopped legally, this could mean facing the loss of a license. If you weren't stopped legally, then you may still retain the right to refuse the test, but you should seek to contact your attorney.

One thing that could help your case, if you refused to give a breath sample, is whether or not the officer read your DIC-14 warning. This is a warning telling you about what will happen if you refuse the test. If you didn't have the warning given to you on paper or orally, then it's possible to question the admissibility of the evidence to court.

Can you speak with your attorney before giving a breath test?

Growe v. State, 1984, brought up this question. The courts found that implied consent laws don't depend on the motorist's choice to contact an attorney. Since that's the case, the officer may ask for your breath or blood sample whether or not you opt to call an attorney. Interestingly, the officer does not need to read your Miranda Rights before you give a sample.

With any DUI charge, there are many ways to reduce the charges or to have them dropped completely. Questioning the validity of the tests, showing calibration errors or even showing user error can help. If you refuse, though, there is an additional set of challenges you face when defending your innocence.

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Keith Gore, Lawyer
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