Under Texas’ Implied Consent law, anyone who accepts a driver’s license automatically consents to breath and blood samples when legally arrested on suspicion of DWI. Even still, you have the right to withdraw consent.

However, refusing chemical tests in Texas comes with consequences that you should be aware of. In this article, we’ll cover chemical testing in Texas DWI cases, including the consequences of refusing them.

What Are DWI Chemical Tests?

DWI chemical testing consists of analyzing a person’s blood, urine, or breath samples to determine their Blood Alcohol Content (BAC), as well as detect the presence of any controlled substances in their system. The purpose of these tests is to gather evidence for use in a DWI trial.

The Texas Penal Code defines “Alcohol concentration” as the number of grams of alcohol per:

• 210 liters of breath
• 100 milliliters of blood
• 67 milliliters of urine

Typically, if officers suspect you’re drunk driving, you will be asked to submit a breath test at the police station. If law enforcement officers believe you may be under the influence of drugs or a combination of drugs and alcohol, they will ask you to submit a urine or blood sample.

Blood BAC testing is performed in a lab using gas chromatography—an accurate and reliable technique. Of all three chemical testing types, blood results are the most difficult—though not impossible—to challenge.

Breath tests are performed by blowing into a stationary breath device at the police station. The process takes a few minutes, and the results are admissible as evidence in a DWI trial.

Urine tests, or urinalysis, can be used to detect both alcohol and drugs in your system. It is considered the least reliable type of chemical testing. One reason for this is that a shift in your alcohol blood content, as well as the presence of other substances, will not immediately be evident in your urine. Conversely, traces of drugs may remain in your system for days, which can lead to false positives.

The Established Blood Alcohol Concentration (BAC) Limits for Driving in Texas

According to the Texas Penal Code, an adult is considered legally intoxicated if their BAC level reading is 0.08 or higher. The legal BAC limit is halved for commercial vehicle drivers.

The Federal Motor Carrier Safety Administration (FMCSA) sets the legal BAC limit for commercial drivers at 0.04. However, the Texas Transportation Code § 522.101 states that driving while having any measurable or detectable amount of alcohol in the system is prohibited.

If a commercial driver registers any measurable amount of alcohol below 0.04, they may be ordered to stop driving for 24 hours. A BAC of 0.04 or above can lead to DWI charges.

The law is even tougher on minors. In Texas, there is no legal BAC limit for minors—the state operates a zero-tolerance policy, which means it is illegal for anyone under the age of 21 to be driving while they have any amount of detectable alcohol in their system.

The Difference Between a Chemical Test and a Preliminary Breath Test

If you are pulled over on suspicion of driving while intoxicated, the officer may ask you to submit a breath sample using a hand-held Breathalyzer. This is also known as a preliminary breath test—it is not considered “chemical testing.” Typically, the results from these Breathalyzers are used to determine probable cause for arrest—they are not admissible as evidence for use in a trial.

You have the right to refuse roadside Breathalyzer tests without legal consequences. However, if the officer determines another probable cause, you will still be arrested and taken to the station—or a mobile DWI unit, where officers will seek to gather evidence through chemical testing.

Once arrested, you may be asked to provide a breath sample using a stationary evidential Breathalyzer. The results from this test can be used against you in court. 

Are Chemical Tests Mandatory in Texas?

Once you are under arrest for Driving While Intoxicated, the police will ask you to submit a specimen for chemical testing.

Under the Texas Implied Consent law, anyone who accepts a driver’s license automatically consents to chemical testing if legally arrested for DWI. You still have the right to refuse chemical tests, but doing so violates the state’s Implied Consent law.

If you refuse a chemical test, the arresting officer will probably seek a warrant for a mandatory blood draw. Once they have the search warrant, officers can take a blood sample from you, even if they have to do it by force.

Legal Authority and Conditions for Police-Initiated Chemical Tests

Some circumstances grant police officers in Texas the legal authority to take a breath or blood sample from you without consent.

Your right to refuse a chemical test no longer applies if peace officers have probable cause for arresting you for DWI and one of the following circumstances is true:

• You’ve been involved in an accident that has resulted in serious bodily injury or death of another person
• You have a previous conviction for DWI with a minor
• You have two previous DWI convictions
• You have a previous conviction for intoxication assault or intoxication manslaughter

Do Texas Officers Have to Explain the Consequences of Refusing a Chemical Test?

Yes. Texas peace officers must, by law, explain that you have the right to refuse a chemical test and the consequences of refusal, including a driver’s license suspension. They must also inform you that your refusal could be used against you in court.

What Are “No Refusal” DWI Initiatives in Texas? 

“No refusal” initiatives are usually run during busy holiday periods where DWI incidents tend to increase. Despite the name “no refusal,” the law does not change during these periods—you can still refuse a chemical test.

However, during “no-refusal” periods, officers have more resources at their disposal, including quick access to on-call judges who can review and sign blood search warrants—even in the late hours, and mobile DWI units. The additional resources mean that if individuals refuse to comply, officers can quickly and easily gain the legal authority they need to be able to compel them.

Penalties for Refusal of Chemical Testing

Refusing chemical tests during a DWI arrest will trigger the Administrative License Revocation (ALR) program, a civil administrative process that is unrelated to DWI criminal court proceedings. In other words, it can take place in addition to a DWI case or on its own—even if you do not get prosecuted for DWI.

The ALR program requires the Texas Department of Public Safety (DPS) to suspend your driver’s license. The length of the suspension will depend on whether this is your first offense.

A first refusal results in the automatic suspension of your driver’s license for 180 days.

If you have either a prior DWI conviction or test refusal on your record, your license could be suspended for up to two years.

Either way, your driving privileges will not be removed immediately after your test refusal. Instead, you will be issued a suspension or disqualification notice, giving you 15 days to request an ALR hearing where you can contest your license suspension or disqualification.

If you fail to request a hearing within 15 days of the notice being served, your automatic suspension will begin on the 40^th day after the arrest. If you have been handed a suspension notice within the last 15 days, time is of the essence! Not only would an ALR hearing give you the chance to protect your driving privileges, but it would also allow your DWI defense lawyer to test the strength of the prosecution’s case against you. Call Michael & Associates today to discuss your ALR case.

What is the Permanent Revocation of a Driver’s License

The DPS can suspend your driver’s license for a set period or revoke it. License revocations are usually indefinite—they remain revoked until you comply with the conditions set out by the department. Once you have met these conditions, you may be able to get your license reinstated.

For example, if you have been convicted of a second or subsequent DWI within a 10-year period, you may be required to attend a repeat offender course. If you fail to complete the course by the end of the mandatory license suspension period, your license will be revoked, and you will not be able to get it reinstated until you have completed the course. Although this isn’t the same as a permanent revocation, you will never get your license back if you decide not to comply.

Some circumstances could lead to a permanent revocation. In this case, your license is canceled entirely, and you can’t get it reinstated.

Commercial Vehicle Licenses are subject to disqualification, as well. Depending on the offense committed while driving a commercial vehicle, drivers can be disqualified for 60 days to five years. In some circumstances, for example, if the vehicle was used in the commission of a felony, the driver can be disqualified for life.

Is It Possible to Contest the Revocation of a Driver’s License Due to Refusing a Chemical Test?

You can and should contest the revocation of your driver’s license after refusing a chemical test. However, to do so, you must request an Administrative License Revocation (ALR) hearing within 15 days of being served a notice of suspension.

If you fail to request an ALR hearing during this time, the suspension will automatically go ahead, and you won’t have the opportunity to reverse the decision unless you earn an acquittal in your DWI case.

Since Implied Consent only applies to individuals who have been placed under arrest legally, contesting the revocation of your license will hinge on introducing doubt around the circumstances of your arrest and any evidence gathered, including:

• Reasonable suspicion for the traffic stop
• Probable cause for your arrest
• Whether you met the legal definition of Driving While Intoxicated
• A failure by the officer to read your statutory warning

Winning an ALR hearing isn’t easy. The prosecution doesn’t even have to prove that you were intoxicated—the ALR process isn’t concerned with your guilt in committing a DWI offense but rather your refusal to comply with the state’s Implied Consent policy. If you’re serious about winning, you’ll need a good strategy, which begins with finding the right defense lawyer.

The Best Defense Strategy for Drivers Who Refuse a Chemical Test in Texas

Every case is different, and you should speak to a criminal defense lawyer about building a defense strategy tailored to your case. With extensive experience in DWI cases and a track record for successful ALR hearings, Michael & Associates knows how to put together a winning case.

Although the results of your ALR hearing will have no bearing on your DWI trial, it will give your lawyer an opportunity to test the strength of the prosecution’s case against you so that, together, you can better prepare for your DWI defense.

It’s vital to remember that if your license is revoked, the refusal will remain on your record, and a subsequent violation of Texas’ Implied Consent policy will result in a lengthier suspension. Contesting your license suspension isn’t just about retaining your driving privileges—it’s also about protecting your future.

Book a free case review with Michael & Associates today, and we’ll have an open and honest discussion about the best defense strategy for your ALR hearing.