You have the right NOT to incriminate yourself under the 5th Amendment of the United States Constitution, meaning you cannot be compelled to “dig your own ditch”-so to speak-by the police. Therefore, you can (and probably should) refuse to take the breath test if you have had more than a couple of drinks and don’t know if you will pass. The best excuse to give the police is to tell them (and the video camera) that you are refusing because you heard from an attorney blog that the test was unreliable. Be polite but resolute. If you refuse the breath test, the police may seek a warrant from the judge to draw your blood. Though this would seem to clearly violate your 5th Amendment right not to incriminate yourself, Texas Courts have carved out this exception for blood warrants in DWI cases under the evidentiary theory that the State has a right to investigate your blood once there is reasonable suspicion to believe it may contain evidence to support a crime that will deteriorate and become unreliable if not seized quickly. This rationale seemingly violates your 4th Amendment right to be free from unreasonable searches and seizures as well.
Nevertheless, Texas police can compel you to take a blood test-but not a breath test. If you refuse the breath test, the police may seek a blood warrant, but they may not. Further, a judge is not available every night to issue warrants for blood draws-so it may not be an issue. The goal is to get through your Dallas DWI arrest without having to take a blood test or breath test. It will make it more difficult for prosecutors in Dallas, Collin County, or anywhere else in the DFW area to prove you were intoxicated beyond a reasonable doubt.