DWI Test Refusal and Implied Consent

Drivers who are arrested in Austin for DWI need to understand how a DWI test refusal and implied consent can affect their case. Refusing a DWI test won't make the case disappear. But it can be used as evidence in the DWI criminal case and trigger a separate driver's license case. And it won't stop officers from trying to get a blood sample through a warrant.

When an officer asks for a breath or blood test after a DWI arrest, many people say no. Some are scared or confused, while others are worried about the result or unsure what the officer is really asking them to do.

But there's an implied consent law in Texas: If you drive in a public place, you have already agreed to provide a breath or blood sample after a lawful DWI arrest.

Need Help From a Texas DWI Test Refusal Attorney?

If you were arrested for DWI in Austin and refused a breath or blood test, the first issue you'll be dealing with will be your license suspension. And usually, you'll only have 15 days to request an administrative license revocation (ALR) hearing.

Michael & Associates can help review the stop, arrest, refusal paperwork, ALR deadline, warrant issues, and defense options. Our Austin DWI lawyers can also look at whether you may need an occupational driver's license so you can keep driving for work, school, or essential household needs if you qualify.

Our Austin team is led by James Fletcher, who's a certified ACS Forensic Lawyer-Scientist. His training can be important in DWI refusal cases in which the police later obtained a blood sample. He'll consider everything from the timing, collection process, and storage to the lab testing and interpretation of the result.

What Implied Consent Means in an Austin DWI Case

Texas has an implied consent law (Transportation Code Chapter 724). It means that if police lawfully arrest you for DWI, the law treats you as having agreed to a breath or blood test. You can still say no, but saying no can cause license problems and may be used in court.

What Police Must Tell You Before Asking for a Breath or Blood Test

Before asking for a breath or blood test, the officer must give you a warning orally and in writing. Called the DWI statutory warning or implied consent warning, it should explain that refusing the test can have consequences, such as:

• A refusal may be used against you in court
• Refusing the test can lead to an automatic license suspension of at least 180 days, even without a DWI conviction
• The police can still apply for a warrant to obtain a specimen

If you agree to testing, the warning should also explain:

• For drivers 21 or older with a blood alcohol concentration (BAC) of 0.08% or higher, their driver's license will be automatically suspended for at least 90 days, even without a conviction.
• If you are under 21 and the test shows any detectable alcohol, your license will be automatically suspended for not less than 60 days. If your BAC is less than 0.08, you may face less severe criminal penalties.
• If you submit a blood specimen, the sample will be retained and preserved in accordance with Texas Code of Criminal Procedure Article 38.50.
• You have the right to a hearing on the suspension or denial, but the Department of Public Safety (DPS) headquarters in Austin must receive your written demand within 15 days after you receive, or are considered to have received, the notice.

Can an Officer Force Me to Take a DWI Test?

In many Austin DWI cases, an officer cannot simply force a breath or blood test if you refuse. In some serious DWI investigations involving crashes, injuries, child passengers, or prior offenses, police may seek a compelled blood sample.

Even in those situations, police generally need a warrant or a valid emergency reason before they can require a blood sample.

That does not mean the case is automatic. If police obtained a blood sample after you refused, a defense lawyer may review the warrant, the supporting facts, the timing of the blood draw, who took the sample, how it was stored, and how the lab tested it.

What Happens to Your License After a DWI Test Refusal?

The first major consequence of a DWI refusal is often the ALR case, which is handled separately from the criminal DWI charge.

Here are the penalties for refusing to submit to a DWI test in Austin:

Some drivers with a suspended or revoked non-commercial license may also qualify for an occupational driver's license. This temporary license may allow limited driving for work, school, or essential household duties.

How Can Refusing a DWI Test Be Used Against You in Court?

If you refuse a DWI test, the prosecutor may argue that the refusal shows you knew you were intoxicated at the time of arrest.

But a lawyer may argue that refusing the test does not automatically prove DWI. The accused may have innocent or explainable reasons for the refusal. For example, the person may have been scared, overwhelmed, confused by the warning, worried about needles, unsure whether the request was legal, or afraid that anything they did would be used against them.

Common Defense Strategies for DWI Test Refusal Cases

In these cases, the defense lawyer may look at the full sequence of events. Some of the things that can be used for the defense include:

• Was the traffic stop legal?
• Did the officer have enough facts to arrest?
• Were the implied consent warnings given correctly?
• Did the driver understand the request?
• Was a warrant used after the refusal?
• Was the blood draw delayed?
• Does the video match the report?
• Were field sobriety tests fair?

Real World DWI Case Outcome

Charge: DWI - Second Offense

Location: Williamson County, County Court at Law #3

The case: During a traffic stop for speeding, our client was arrested for a second DWI. The client refused to take a breath test, and a blood sample was drawn several hours after the stop. We reviewed the dashcam and bodycam videos and found several problems with the case. The field sobriety test was done on a sloped roadside while the client was wearing heeled boots, and the video showed the client was clear and coordinated. We also pointed out that speeding by itself does not prove intoxication, and that a delayed blood test does not always show what someone's condition was at the exact time they were driving. After these issues were raised, the State dismissed the case.

Result: Case dismissed

Past result. Not a promise. This case result depends on the facts of that case. It does not mean your case will be dismissed or that the same result will happen for you.

Helpful DWI Resources

1. Texas DPS Administrative License Revocation Program: This Texas DPS page explains how the ALR process works, the difference between the license case and the criminal case, and what happens after a refusal or failed test.
2. Texas DPS ALR Hearing Request Form: Use this page to request an ALR hearing after notice of suspension, and it highlights the short deadline to act.
3. Texas State Law Library Occupational Driver's License Guide: Explains what an occupational driver's license is and points readers to practical next steps and forms.
4. Texas Judicial Branch Nondisclosure Forms: Provides official nondisclosure forms and instructions, including materials for certain DWI-related nondisclosure requests.

How Michael & Associates Can Help With a DWI Test Refusal Case

If you or someone you know has been arrested for DWI and refused testing, Michael & Associates can help.

Our Austin DWI lawyers can review whether the stop was legal, whether the arrest was supported, whether the warnings were handled correctly, whether the officer had grounds to request a specimen, and whether an ALR hearing should be requested.

We can also defend the underlying DWI case. That can include reviewing the officer's report, bodycam and dashcam footage, field sobriety allegations, warrant issues, blood or breath evidence, and possible options for addressing the license issue and limiting the impact where the facts and law allow.

Contact us for a free case review.