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Yes, You Can Refuse a Breathalyzer in Texas. But Should You?

Ben Michael

In most cases, you can refuse to take a Breathalyzer or blood test if you’ve been stopped by law enforcement officers in Texas. However, the police officer may still be able to obtain a warrant for a mandatory blood or urine test, and your refusal can be used against you in court during a DWI prosecution. Furthermore, refusal to submit a breath or blood sample can lead to non-criminal penalties.

So yes, you can refuse (and usually should), but refusal can come with consequences. Let’s dive in.

You might think that it’s your right to refuse a Breathalyzer test, and in most cases, an officer will not force you to take one. However, according to Texas law, all drivers are “deemed to have consented” to a post-arrest blood-alcohol content (BAC) test, simply by choosing to drive. This law is often referred to as Implied Consent.

Before being placed under arrest, you can refuse any tests, including roadside Breathalyzer and field sobriety tests, without facing civil or criminal penalties. After a DWI-related arrest, however, Implied Consent requires you to submit a sample for testing your BAC if it has been requested by the officer.

At this point, you can still refuse, but this will result in non-criminal, civil penalties.

There are a few circumstances in which a driver cannot refuse a Breathalyzer or blood test. If you have been arrested for a DWI, you cannot refuse a test if:

  • You’ve been in a DWI-related accident that has caused serious bodily injury or death
  • You have a previous DWI conviction in which there was a child in the vehicle
  • You have 2 previous DWI convictions
  • You have a previous conviction of intoxication manslaughter, or assault while intoxicated

What Happens if You Refuse a Breathalyzer Test?

Let’s take a step-by-step look at what the process might look like if a driver is taken into custody for a suspected DWI. 

The law enforcement officer needs to determine the suspect’s BAC level. The limit at which a driver is deemed legally intoxicated is 0.08 percent or higher. The officer will likely request a sample of the suspect’s breath using a roadside Breathalyzer.

Let’s say the driver knows they’ve had a couple of drinks, and is unsure whether they would pass the test, or has heard that Breathalyzers are not always accurate. They decide to refuse.

At this point, the officer can seek a warrant that would allow them to obtain a blood or urine sample from the suspect, usually on the same evening. If the judge determines that the officer has probable cause, they will issue the warrant, and the suspect will be transported to a facility where a sample can be collected. 

In short, even if you do refuse to take a test, it won’t necessarily prevent the police from obtaining a sample from you. Unfortunately, refusing a Breathalyzer test can, and in most cases will result in penalties, and the prosecution may try to use your refusal as proof that you were trying to hide your intoxication.

Penalties For Refusing a Breathalyzer Test

According to the Texas Penal Code, drivers who refuse to submit a BAC test will face having their driver’s license suspended for 180 days. For those who have prior DWI history, this can be lengthened to 2 years.

At the time of the suspension, drivers are handed a temporary permit and a written notice. The suspension of the driver’s license can be contested within 15 days after the arrest. This crucial time is when you can challenge the suspension by requesting an Administrative Licence Revocation, or ALR hearing.

Can You Keep Your License if you Refuse a Breathalyzer?

After refusing a Breathalyzer, your license will be taken away and you will be given a temporary permit, which you can use until the suspension period begins.

The suspension of your license is an administrative civil matter that’s separate from a DWI prosecution, which is a criminal matter. If you request an ALR hearing within 15 days after you were handed written notice, the Department of Public Safety must prove to a judge that the law enforcement officer had reasonable suspicion for stopping you, and probable cause for arresting you.

With the help of a lawyer, an ALR hearing gives you the opportunity to fight for your right to keep your driver’s license. If you do not request an ALR hearing during the 15-day period, your suspension will go ahead on the 40th day after your arrest, and you will be legally unable to drive for 180 days or longer.

How Refusing a Breathalyzer Affects Your DWI Case

If you have refused a Breathalyzer test, the decision can be used against you during a DWI trial. For example, the prosecution could argue that the reason you refused to carry out a Breathalyzer test is that you were aware your BAC would reach 0.08%, and therefore you knew you were legally intoxicated and that you should not have been driving. An experienced defense lawyer could give the jury many reasons why an innocent person might refuse to give consent, which is why it’s critical to have one on your side. If you need to speak to a lawyer today, contact Michael & Associates for a free case review.

Ben Michael

Ben has vast experience in defending criminal cases ranging from DWIs to assault, drug possession, and many more. He has countless criminal charges dismissed and pled down. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.

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