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What Are The Penalties For Refusing A DWI Chemical Testing?

Driving while intoxicated or DWI carries with it personal and professional consequences. It is worth noting that when driving a motor vehicle, you are subject to the “implied consent” rule. This means that having a driver’s license, you have agreed to undergo a chemical test. If you get arrested for drunk driving, you are bound by law to allow the police officer to administer a chemical test to determine your blood alcohol content.

White Plains DWI defense attorney at the Law Offices of Richard A Portale, P.C. will tell you that refusal to undergo chemical testing can have serious consequences. First of all, your refusal to undergo chemical test is a violation of the implied consent law of that state. One of the penalties for refusing to take the chemical test is revocation of your license. The suspension is independent from the criminal element of DWI.

The good news is that your license will not be revoked immediately after your refusal. You are given 15 days to request for an administrative hearing concerning the suspension. Your refusal to request for a hearing initiates the automatic suspension 40 days after your refusal. The State Office of Administrative Hearings handles the hearing and the request can be made online.

Refusal to undergo chemical test does not necessarily subject you to immediate jail term. One option to consider is the Secure Remote Alcohol Monitoring Device or SCRAM. This device measures the amount of alcohol in your sweat. The prosecutor will be notified when you consume alcohol. To escape imprisonment, you may be required to wear this device to verify that you are not consuming a measurable amount of alcohol.

But while there is a way to escape jail term, the bad news is that the court can use your refusal to undergo a chemical test against you in court. The judge can make an argument that your refusal to take the test is an admission of guilt. They may think that your action only means that you have something to hide.

DWI Mothers with Children on the Rise

There is a disturbing trend where more mothers are getting arrested and charged for driving while intoxicated (DWI) with a minor (less than 15 years old) passenger. In a 10-year period, the number of mothers with DWIs in general jumped more than 20%, and many of them had a child with them at the time of the arrest.

DWI with a minor passenger (Texas Penal Code §49.04) is like getting a Go to Jail card; don’t pass Go, don’t collect $200. In Texas as in most other states, drunk driving while there is a child in a car has more serious consequences. For first time offenders the offense is a state jail felony, while an enhanced charge (for prior arrests or convictions) it could be elevated to third degree felony.

Under Texas law, a DWI does not necessarily mean intoxication through alcohol. It could be from the use of a dangerous drug even if it is prescribed or other substances even if they are legal; it cannot be used as a DWI defense. The law is designed to discourage a driver from getting behind the wheel after taking certain medication, for example, when it impairs their ability to operate a vehicle in any way.

Some experts speculate that this DWI mother trend is due to a cultural shift from a stay-at-home mom to working mom, which makes it more acceptable for women to drink alcohol. Another contributing factor is the increased stress resulting from the demands of work as well as home. Some women cope with it by drinking alcohol to relax, or taking medication. But because these have a significant effect on a person’s ability to focus, it is dangerous to drive, and poses an unacceptable level of risk to child passengers. As pointed out on the lomtl website, a conviction means a minimum of 180 days with a suspended license, up to 2 years in jail for a first offense, and a $10,000 fine.

Being charged under §49.04 is a serious matter, and needs to be addressed appropriately. Consult with a competent DWI lawyer in your area to legally represent you in this matter.