Do I Have to Take a Breathalyzer Test? An Overview of Texas Law

Do I Have to Take a Breathalyzer Test? An Overview of Texas Law

In Texas, it is unlawful to operate a motor vehicle with a blood alcohol concentration (BAC) of 0.08 or higher. One of the common ways law enforcement officers measure a person’s blood-alcohol level is by administering a breathalyzer test. This raises an important question: Do I have to take a breath test? The short answer is no, but the issue is much more complicated than that. A refusal to take a breath test may not end the whole ordeal and it can come with negative consequences. In this article, our Galveston DWI defense lawyers describe the most important things you need to know about your obligation to take a breath test in Texas.

Texas Law: You Have Already Agreed to Take a Post-Arrest Breathalyzer Test

Under Texas law (Texas Transportation Code Sec. 724.011), every driver is deemed to have automatically ‘consented’ to a post-arrest breathalyzer test. This is often referred to as our state’s implied consent statute, this law requires that you take a breath test after you have been arrested on suspicion of intoxicated driving. However, despite this law, you may still refuse to take a breath test. But your refusal to take the test carries automatic administrative penalties that will affect your driver’s license.

A Breath Test Refusal = An Automatic Driver’s License Suspension

If you decline to take a breath test, you will face an immediate driver’s license suspension. This is an administrative civil matter and is independent of the criminal case. The length of the suspension will depend on whether or not you have any prior DWI-related criminal history. First-time offenders will be subject to a 180-day driver’s license suspension. But if an individual has any prior DWI history the period is lengthened to two (2) years.

You do have the ability to contest this suspension. Which is part of the reason why the first 15 days after an arrest, and breath test refusal, are some of the most critical in any DWI defense. This is the time frame in which you can challenge the suspension by requesting a hearing. This hearing, referred to as an ALR hearing, is an opportunity to try to keep your license from being suspended, but it also provides potential strategic value to the defense of the criminal case.

Refusing a Breath Test is a Not a Surefire Defense Against a DWI Charge

To convict a driver of a DWI offense, prosecutors must prove that the accused was operating a motor vehicle while intoxicated. The State can and will use whatever forms of evidence available to prosecute someone for a DWI offense, including video, a police officer’s testimony, or blood obtained by a search warrant. Although it is important to emphasize that a breath test is not necessary to prosecute and convict an individual for a DWI offense; the results of a breath test serve as a key form of evidence against someone accused. Without the results of a breathalyzer test, prosecutors will be forced to prove their case in a different way. A DWI attorney can help you build your defense against the State.

In this recent Facebook Live, Galveston DWI Lawyers Mark Diaz and Thomas Overhouse answer common DWI questions people have in Texas.

Call Our Galveston, Texas DWI Defense Attorney for Immediate Assistance

Mark A. Diaz is a top-rated Texas DWI defense attorney. Our law firm is committed to providing clients aggressive, effective representation. If you have questions about breath test refusals, we can help. To schedule a free, no-obligation review of your case, please contact us today. We offer criminal defense services throughout the region, including in Galveston, Friendswood, Pearland, Texas City, Pasadena, and Missouri City.

updated March 18,2021