Many times, the only way law enforcement can prove that your blood alcohol content was .08 or more (the legal limit) is to give a breath or blood chemical test.

Refusing to take a breath test sounds like a simple way around being charged with a driving under the influence of alcohol charge.

Unfortunately, for those charged with driving while intoxicated, (DWI) refusing to take a breath test has severe consequences.

First, all Texas drivers give their implied consent that if a police officer has probably cause to arrest you for driving while intoxicated, then the driver consents to taking a breath or blood test so that the blood alcohol content can be determined.

Moreover, the officer can choose whether a blood or breath test should be given. The test should be given as soon as possible after the officer stops someone.

What happens if someone refuses a test?

Anyone who refuses to take a breath or blood test will suffer the following penalties:

  • License suspension: If the DWI is your first offense, the penalty for refusing the chemical test is a license suspension for 180 days. If the DWI is a second or third offense, the refusal penalty is suspension of the license for two full years.
  • The refusal to take the chemical test can be used in court. In addition to the loss of license for a specific time period, the refusal to take the breath or blood test can be used in the trial for the driving while intoxicated offense. This means the driver is likely to be convicted for refusing to take the test.

If the driver takes the test, there are defenses such as challenging whether the breath or blood test equipment was properly inspected.

The defense is not available if the driver refused the test. Drivers, whether they take the test or not, can challenge whether the police officer had proper grounds to stop your vehicle.

Police Officer’s Duty

In order to use the refusal against an individual in court or to suspend a license, the police officer does need to explain to the driver the consequences for failing to take the chemical test.

The officer must inform the driver orally and in writing:

  • That the license can be suspended for at least 180 days if the driver refuses the chemical test. 
  • That if the driver takes the test and the BAC is more than the legal limit, the driver can lose his/her license for at least 90 days.

The police officer will ask any driver who refuses a chemical test to sign a form acknowledging that the officer asked them to take a chemical test and they refused.

The officer will immediately take their license and give the driver a temporary permit good for just 41 days. Drivers who wish to challenge the suspension must formally ask for a hearing within about 15 days.

When can the police officer take a chemical test if the driver refuses?

Once the driver refuses to take the test, the police officer can’t take a blood or breath test unless:

  • Someone was killed or seriously injured
  • The driver had two prior DWI convictions
  • The driver had one prior DWI conviction and there was a child in the car.

If one of these conditions does not apply, then the police officer would need to obtain a warrant to physically perform a breath or blood test.

Is refusal to take the breath test a good idea?

Generally, the answer to this question is no. 

  • A conviction for a first-time DWI carries a 90-day suspension. A 90-day suspension is less than 180 days for a refusal.
  • A first-time DWI, in Texas normally means the driver will need to spend at least three days in jail and possibly six days if there was an open container with alcohol, a few open beer bottles for example.
  • The refusal to take the chemical test can be used in court. Most judges and juries will assume that the driver refused the test because they knew they were intoxicated. Still, there is a possible benefit. A breath or blood test is hard-evidence that you were intoxicated.  A refusal isn’t always as convincing.

Insurance companies will generally be notified of the refusal and may increase premiums.

Speak With An Experienced DUI Lawyer Today

Defenses may be available in DWI cases. The lawyers at Scott M. Brown & Associates may be able to show the police officer did not have proper grounds to stop your vehicle or to make an arrest.

We may be able to challenge a license suspension if you refused a chemical test – but only if you act promptly.

Please call us at (979) 319-5388 to speak with one of our Texas DWI attorneys today or contact us online