When do you take a breath test after a DWI arrest?

 Posted on March 26,2020 in Uncategorized

After you have been arrested for Driving While Intoxicated the next step is for the officer to request a sample of your breath or blood. The breath test is taken at the jail using the intoxilyzer and the blood sample can be taken at the jail or hospital. Many people are surprised to learn the breath test is not taken on the side of the road but later at the jail! The results of the breath and/or blood test may result in a suspension of your driver's license. Many officers carry a portable breath test device but that breath test does not count toward determining your alcohol concentration or license suspension.

Statutory Warning

The Statutory Warning is the form that an officer will read to you formally requesting a specimen following a DWI arrest. The officer may request a specimen of breath, blood, or both. The officer decides what type of specimen you will provide. The warning may be read to you at the scene in the back of the police car or at the jail. The warning sets out the consequences for providing a sample over .08 or refusing to provide a sample. You will be provided a copy of the document to follow along with while the officer reads it to you.

What happens if you provide a sample over .08?

If you provide a sample over .08 your license will be suspended for 90 days. If there is a prior alcohol related contact (prior DWI) on your driving record within ten years your license will be suspended for one year. The New York Times wrote an article about breath testing that you might find interesting.

What happens if you refuse to provide a sample?

If you refuse to provide a sample your license will be suspended for 180 days. If there is a prior alcohol related contact (prior DWI) on your driving record within the last ten years your license will be suspended for two years. In addition, if you refuse to provide a sample, the office may (most likely) obtain a warrant to take your blood. Usually the blood is taken at a local hospital but sometimes the blood is taken at the jail!

When would the suspension begin?

The suspension would begin automatically 40 days after you received your notice of the suspension.

How do you receive the Notice of Suspension?

After you provide a sample over .08 or refuse to provide a sample, the police officer will seize your driver's license. The officer will provide you with a Notice of Suspension / Temporary Driving Permit. This will be your driver's license until you are legally able to obtain a new license.

Can you contest the license suspension?

Yes! A hearing can be requested to contest the automatic suspension. The hearing must be requested within 15 days after you received the notice of suspension. Once the hearing is requested your temporary driving permit is valid until the Administrative Law Judge makes a decision in your case. The hearing most likely would be several months after your arrest.

What happens if you did not request a hearing in time or your license is suspended at the hearing?

If your license is suspended we can petition the court for an occupational license. An occupational license will allow you to drive for essential needs such as work, school, and family obligations.

Are individuals under 21 at the time of arrest facing different suspensions?

Yes! A person under 21 is treated different because they are not of the legal drinking age. If a person younger than 21 has a detectable amount of alcohol in their system, their license will be suspended for 60 days. Detectable amount is a lower standard than the legal definition of intoxication. If a person younger than 21 refuses to provide a sample, their license will be suspended for 180 days.

Are you facing a license suspension?

Please call my office to discuss your options! The Dameron Law Firm has extensive experience representing individuals accused of Driving While Intoxicated and representing individuals at license hearings. We can be reached at 817-222-0624.