Breathalyzers During the COVID-19 Pandemic

Since the COVID-19 pandemic began raging a year ago, the general public and police officers have become understandably wary about Breathalyzer tests. The apprehension is understandable because nothing about blowing into a device that may or may not be properly sanitized is appealing with a highly infectious respiratory virus running amok.

Pandemic or not, however, people are still getting pulled over for suspected driving while intoxicated (DWI) offenses. How can you protect yourself against exposure to COVID-19 – and liability for a possible DWI charge – if you should be pulled over?

Implied Consent in Texas: Are You Actually under Arrest?

If you hold a Texas driver’s license, you implicitly consent to give a breath or blood sample if you are arrested on suspicion of DWI. Failure to submit to a test after arrest can result in a 180-day suspension of your license, independent of whether or not you are prosecuted or convicted of DWI.

It’s worth mentioning for a third time that implied consent is only applicable if you are arrested for DWI. This is why you should ask the investigating police officer if you are being arrested if he or she requests a breath or blood sample. If the officer makes such a request while you are merely stopped or detained, complying with their request for a sample is not required – and it only gives them more potential evidence against you!

Implied Consent in the Time of COVID-19

As we discussed at the beginning of this piece, breath tests have taken a backseat during the COVID-19 pandemic. Because people still have an option to choose between a breath or blood test, people arrested for DWI have opted for the latter more recently.

Blood tests can be double-edge swords, offering mixed results:

  • They may take longer and give your body more time to metabolize alcohol in your system, leading to a lower Blood Alcohol Content (BAC) showing up than when you were arrested.
  • They may take longer and give alcohol you recently consumed more time to enter your system, resulting in a higher BAC than if you submitted to an onsite Breathalyzer test.

The only way an accurate reading of your BAC can be assessed is if you are tested at least twice. Often, though, police will only test once if it means collecting evidence that affirms their suspicions.

Consider Refusing All Tests

When police ask to conduct field sobriety tests and collect breath and blood samples, they are looking for evidence that can be used to arrest and convict you. While you should absolutely refuse unscientific field sobriety tests – like those that have you walk in a straight line or follow a flashlight with your eyes – you should also consider refusing blood and breath samples.

Ultimately you – and only you – can decide if you will submit to these chemical tests after a DWI arrest. If you do refuse, your license is likely to be suspended for 180 days, but this would be a civil matter. If you are charged and convicted of DWI, it’s a criminal matter that can carry a stiff fine and jail sentence – and all of the difficulties you may encounter with having a conviction on your record.

Please bear in mind that if you choose to not submit to testing, there is not guarantee that you can’t be convicted of DWI based on other evidence or testimony provided by officers and witnesses.

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