What Happens if I Refuse a Breath Test?

October 30, 2019

Texas breath alcohol testing regulations fall within the ambit of the state’s “implied consent” law. Under this law, any driver lawfully arrested for a DWI offense must decide whether to submit to chemical testing to determine their Blood Alcohol Concentration (BAC) level or the presence of intoxicating drugs in their body system. 

The law enforcement officer will decide the type of test, breath or blood, that you must take. However, once you agree to take the test, you hold the right to have your blood analysis performed by the medical expert of your choice within two hours of the arrest. This article will explore breath tests and the repercussions involved with refusing a breath test after a DWI arrest. 

dwi test refusal

Know Your Rights

In normal circumstances, an officer in Texas cannot force you to submit to a test. They must respect your choice of DWI test refusal. However, if you refuse to take a breath test in Texas, you will face legal consequences.

The law also requires the arresting officer to explain to you the consequences of a DWI test refusal, including license suspension. The law also requires the officer to explain to you that if you refuse to take a breath test in Texas, prosecutors may use this evidence against you in court. 


Pre-Arrest Testing in Texas

Under the Texas implied consent law, you don’t have to submit to a breath test before a lawful arrest. However, the officer has a right to ask you to take a voluntary PAS test (Pre-Arrest Screening) to establish a probable cause for an arrest. The officer will usually administer a PAS test using a handheld device for breath testing at the roadside. 

Consequences of Post-Arrest DWI Test Refusal

If you refuse to take a breath test in Texas, the penalties begin at a license suspension for 180 days. If you have had one or more intoxication-related “enforcement contacts” in the past 10 years, your DWI test refusal could result in license suspension for two years. Previous enforcement contacts include failed BAC tests, BAC test refusals, and DWI convictions. 

if you refuse to take a breath test in texasIs It a Good Idea to Refuse the Test?

How sensible it is to refuse a mandatory chemical test after a lawful DWI arrest will depend on the specific circumstances of the case. The refusal may help your case but sometimes, it may not be enough to avoid a conviction. Even in the absence of test results, a jury may find you guilty. 

A refusal could bolster the prosecutor’s argument that you refused because you had a guilty consciousness as you knew you would fail the test. Your best bet is to have an experienced Texas DWI lawyer on your side who understands the law and will use the best legal strategies to defend you in court. 

Fight a DWI Conviction with an Attorney

If you’re facing DWI conviction, don’t give up. At Flood & Associates our team of experienced, passionate, and dedicated DWI defense attorneys will provide you with the best defense possible. With an unmatched win rate and an in-house blood laboratory, no one in the state of Texas compares to our resources and our team. Call us 24/7, 365 at 713-224-5529 for a free case review and start defending your rights today.



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Disclaimer: The information on this website does NOT constitute legal advice. If you need legal advice, then retain an attorney to discuss the facts of your case. If you would like to discuss your case with an attorney at Tyler Flood & Associates, Inc., then please contact us to schedule a consultation. Until we specifically agree to act for you on a matter, you should not provide us with any confidential information or material.
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