Should I Refuse a Breath or Blood Test if I’m Arrested For DWI?

August 11, 2020

When a law enforcement officer in Texas has a probable cause to believe that you were driving while intoxicated, they can require you to take a breath or blood test under the implied consent law in the state. 


But when the officer only suspects DWI, they have sole discretion to decide whether to administer a BAC test. DWI test refusal Texas is permitted (unless the officer has obtained a warrant from a judge). However, it will have legal consequences for you.


The Blood or Breath Test is Decided by the Arresting Officer  


The Texas Transportation Code says that when a law enforcement officer has reasonable grounds to believe you operate your vehicle while intoxicated: 


  1. If the officer arrests you, they can ask for one or more samples of your blood or breath

  2. Once the officer has asked for a specific type of test, your right of DWI test refusal Texas will apply. The police officer at the time is legally required to inform you about your right of refusal as well as what could be the potential consequences of your refusal.


dwi test refusal texas

Your best bet under the circumstances would be to talk to a Texas DWI attorney as soon as possible after your arrest. When you follow your lawyer’s advice, you can make the right decisions at every step that will ultimately work in your favor.


Can the BAC Test be Administered Forcibly? 


Your DWI test refusal Texas is allowed in all situations, except when the police officer has obtained a warrant from a judge for drawing your blood specimen. Two possibilities exist in this case: 


  1. If the police officer has submitted a proper affidavit mentioning the grounds for their suspicion of DWI and receives a warrant from a judge for a blood draw, they can draw your blood sample against your will.

  2. In absence of a warrant and without your consent, if the police officer has taken a breath or blood sample from you, you have grounds to seek exclusion of the test results from the prosecution’s evidence. Your Texas DWI attorney could successfully get the charges against you dismissed in such a situation. 


dwi test refusal texas

The arresting officer is not likely to inform you that if you submit yourself to a BAC test, the law in Texas gives you the right to get a second blood test performed independently from a medical expert of your choice.


DWI Test Refusal Texas – Legal Consequences 


In Texas, if you refuse to submit to a BAC test upon your arrest, you may lose your driving privileges for at least 180 days. If within the past 10 years, you had any intoxication-related “enforcement action,” your driver’s license may be suspended for two years. The enforcement action, in this case, will include: (a) Failed BAC test; (b) Refusal to submit to a BAC test, or (c) DWI conviction or a drug offense related conviction.


Schedule a Consultation with a Seasoned Texas DWI Attorney


If you have been arrested for DWI in Texas, our experienced DWI lawyers at Flood & Associates will fight hard to protect your rights. We have an unprecedented win rate of 80% case dismissals or victories. For a free case review or to request a free consultation, call us at 713.224.5529 or contact us online


Use the form to submit your request for a free consultation.

*Use of this form does not constitute an attorney-client relationship.

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