.. Loading ..

What Happens If I Refuse a Breathalyzer Test in Texas?

By: Mark Diaz April 22, 2021 no comments

What Happens If I Refuse a Breathalyzer Test in Texas?

Can I Refuse To Take The Breathalyzer?

For many Texas residents, their first encounter with the criminal justice system will come in the form of a DWI arrest. These cases usually begin with a traffic stop initiated by a police officer. During the stop, the officer observes the actions and statements of driver and may begin to suspect there is drunk driving involved. When the officer has established probable cause–the legal standard for making an arrest–they will take the driver into custody for driving while intoxicated.

Following a DWI arrest, the next step is usually to ask the suspected drunk driver to provide a sample of their breath or blood in order to determine the driver’s blood-alcohol content (BAC). Under Texas law, a person is legally intoxicated if their BAC is 0.08 percent or greater. The most common method for measuring BAC is to take a sample of the driver’s breath. We often refer to this as “taking a Breathalyzer,” which is actually the brand name for a particular type of instrument, but more generally describes any breath test used to determine BAC.

The question we often get is, “Can I refuse to take the Breathalyzer?” This is a sensible question. After all, if you did have a couple of drinks before the police pulled you over, you may not be sure if your BAC is below 0.08 percent. So why risk giving the police evidence that could be used against you in court?

In terms of the law, you can refuse to take a Breathalyzer. But that refusal can still be used against you in court and will not prevent the officer from getting a search warrant to get a sample of the driver’s blood. On top of that, a refusal can lead to significant non-criminal consequences, notably the suspension of your driver’s license.

What Is The Texas Implied Consent Law?

How can refusing to take a Breathalyzer lead to non-criminal penalties? The answer can be expressed in two words: implied consent. This is a law enforced by every state, including Texas, that effectively requires a licensed driver to submit to a Breathalyzer when lawfully arrested for DWI. If the driver still refuses, then they can face a mandatory suspension of their driver’s license.

At first glance, this may sound unfair: How can the state punish you for refusing to provide possible evidence of your own guilt? The problem is that a driver’s license is considered a privilege granted by the state, not a civil right. In a 2016 decision, the United States Supreme Court made it clear that states cannot impose criminal penalties–i.e., send you to jail–for refusing to take a Breathalyzer. But that does not stop states from revoking a person’s driving privileges.

In that same decision, the Supreme Court differentiated between blood and breath tests. The Court determined that a breath test does not require the police to obtain a warrant, but a blood test does. The justices reasoned that measuring a person’s breath was not as intrusive as taking a blood sample and therefore “did not implicate significant privacy concerns.”

How the Implied Consent Law Works

So what are your actual legal rights when the police ask you to take a Breathalyzer? First, the implied consent law only kicks in after you are placed under arrest for DWI. The mere fact that an officer initiates a traffic stop is not enough. The law requires the officer to have “probable cause” to make an arrest. In terms of legal standards, this is more than suspicion but less than what is actually required to convict someone of criminal DWI (i.e., proof beyond a reasonable doubt).

Once an arrest is made, the implied consent statute assumes that you will agree to a Breathalyzer. At the same time, the implied consent statute also makes it clear that such a test may not be performed if you “refuse to submit.” But here, too, there are some exceptions. The police may, after having developed probable cause, obtain a search warrant from a judge that authorizes an qualified individual to take a sample of an accused driver’s blood without their consent. This may happen in any suspected DWI but is entirely more likely under the following circumstances:

  • You are involved in an accident where someone else has died or sustained a serious bodily injury
  • There was a passenger under the age of 15 in your car at the time of your arrest
  • You were previously convicted of at least one DWI offense where there was a child passenger in the car at the time of the arrest
  • You were previously convicted of at least one DWI offenses

In summary, you are free to refuse a Breathalyzer and the police must respect that decision, but that may not prevent them from ultimately obtaining your BAC.

How Does Refusing a Breathalyzer Affect a Criminal DWI Case?

Before discussing the civil penalties in greater depth, let’s first address how refusing to take a Breathalyzer under the implied consent law will actually impact your prosecution for criminal DWI charges. First and foremost, the prosecution can introduce your refusal to take the test as evidence against you at trial. This is not considered a violation of your Fifth Amendment right against self-incrimination. Indeed, the prosecution is free to argue your refusal is itself proof that you knew you were too drunk to drive at the time of your arrest. However, a skilled defense attorney will be able to explain to a jury the many reasons why an innocent person might refuse to consent.

Now, you might be thinking, “Sure, but without the results from a Breathalyzer test, how can the prosecution even prove I was intoxicated.” It is true that Breathalyzer results are often a critical piece of evidence in a DWI case. But strictly as a matter of law, the prosecution does not necessarily have to prove a defendant’s exact BAC. In criminal law, there are two ways to prove whether someone is intoxicated:

  • When a person’s BAC is above a .08


  • when they do not have “the normal use of mental or physical faculties by reason of the introduction of alcohol.” While BAC is the easiest way to prove this, it is not the only way.

Considering the second method of proof, let’s say a police officer observes a driver swerving their vehicle erratically in and out of traffic. The officer initiates a traffic stop, during which they smell a strong odor of alcohol on the driver’s breath. The officer also sees several empty beer cans in the front seat next to the driver. Even if the driver refuses a Breathalyzer after being placed under arrest, it is still possible a jury could still convict a defendant of DWI on video evidence and the officer’s testimony alone.

How Does Refusing a Breathalyzer Affect Your Driver’s License

Now we can address the civil consequences of refusing a Breathalyzer under the implied consent law–the suspension of your driver’s license. By law, the Texas Department of Public Safety (DPS) is required to initiate a civil process known as Administrative License Revocation (ALR). The process actually begins when you are arrested.

If you refuse the Breathalyzer, the arresting officer will immediately take your driver’s license. The officer will also give you a written notice that your driver’s license is suspended. However, the suspension itself does not take immediate effect, which is why you are given a temporary permit. Under the law, you have 15 days from the date of your arrest to request a formal hearing before the DPS. If you do not ask for a hearing, you will have considered to have waived your right to have a formal hearing and a default judgment suspending your license will be entered against you.

If you do request a hearing, it will not be before the same judge overseeing your criminal DWI case. Instead, you will appear before an administrative law judge (ALJ) who works for the DPS. At the hearing, the ALJ’s role is limited exclusively into looking at whether the police had probable cause to arrest you for DWI and whether you refused a lawful police request for a blood or breath test. Again, this is not a criminal proceeding, so the DPS does not need to establish your guilt for DWI, just the probable cause and refusal.

Even if your chances of convincing the ALJ are slim, the hearing process will prolong the time it takes before any mandatory driver’s license suspension takes effect. Until the ALJ rules, you are free to keep driving under your temporary permit. Once a suspension takes effect, however, you will normally lose your ability to drive legally for 180 days.

In some cases, a refusal under the implied consent law can lead to a much longer driver’s license suspension of 2 years. This civil penalty applies when you have had at least one prior “alcohol-related or drug-related enforcement contact” in the 10 years prior to your current DWI arrest. A “contact” does not just include a prior DWI conviction–if you previously refuse or failed a Breathalyzer test, that will count against you as well.

Contact Galveston DWI Defense Lawyer Mark Diaz Today

Remember, the implied consent law only applies after you are lawfully placed under arrest. If the police request a “roadside Breathalyzer” or field sobriety test before making an arrest, you are free to refuse without facing any civil or criminal penalties. And even after you are arrested, the police must still inform you of your rights under the implied consent law.

Of course, you should never depend on law enforcement to uphold and enforce your rights. For that, you need to work with an experienced Galveston criminal defense attorney who has experience in representing DWI defendants. Contact Mark Diaz today at (409) 515-6170 if you need to speak with a lawyer right away.

Mark Diaz & Associates is a Criminal Defense Law Firm in Galveston, Texas representing clients throughout Galveston, Chambers and Harris Counties including but not limited to Tiki Island, Jamaica Beach, Texas City, League City, Alvin, Algoa, Santa Fe, Hitchcock, La Marque, Bayou Vista, Bacliff, San Leon, Dickinson, Kemah, Bolivar Peninsula, Clear Lake Shores, and Friendswood.

click to call
Schedule a Callback

    We Respect your Privacy, Any information submitted will be confidential