In most states, if an officer suspects you of DUI, a breath test is all but assured. However, a breathalyzer's evidence generally supports the prosecution, and a lack of BAC evidence because a test was not performed is often an indication that other physical evidence was sufficient enough to arrest you for DUI.
What evidence is admissible?
The legal limit for DUI in the United States is .08, and any breathalyzer test that shows a .08 reading or higher is automatic grounds for arrest. Your BAC level, as determined by a breathalyzer test, however, is not the sole determining factor in a DUI, and other physical evidence may also factor in to your arrest.
Driving: if you are driving erratically, poorly or in a manner known to be consistent with intoxicated operation of a motor vehicle, officers will note this in their report and cite it as a reason for suspicion and arrest.
Sobriety tests: If you fail standardized field sobriety tests, arresting officers can also use this as evidence against you.
Admission: If you admit that you are under the influence of alcohol to the officers, your admission can be cited as evidence.
Other physical indicators: In some cases, a breathalyzer test may not be an option because officers are physically incapable of administering the test properly. If you are inebriated and cannot follow direction, for instance, the fact that you cannot perform the test is evidence itself of intoxication. Physical symptoms such as odor, falling asleep or loss of consciousness and urination may also be indications of your intoxication that arresting officers can use to aggregate a case against you without the use of a breathalyzer.
What if I refuse?
Most states have an implied consent law that means while you have the right to refuse a breathalyzer test, refusal results in automatic suspension of your license. DUI attorneys generally give conflicting advice on how best to deal with a breathalyzer test, as the accuracy of these roadside tests is debated and contingent on a number of factors.
What if officers arrested me improperly?
While in most cases the lack of a breathalyzer test is often in favor of a fair amount of other evidence of intoxication, if you feel as though officers did not follow procedures properly, consult an experienced DUI lawyer to see what your defense options are.
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Recently on our DUI forum a user asked, “I went to a party the other night and drank too much. I was arrested later that night and the arrest is my third Texas DUI. Am I going to jail? What other Texas DUI penalties will I face?”