Can you refuse a breathalyzer test? If you’re pulled over in Texas, a police officer can ask you to take a breathalyzer test. You do not have to consent to a breathalyzer test, but you will face consequences for your refusal. But why? And what are the consequences? Let’s take a few minutes to answer the question, “Can you refuse a breathalyzer test?” in full.
Implied consent laws and refusing a breathalyzer test in Texas
When you apply for and obtain a driver’s license in Texas, you also enter into an implied consent agreement. This means that you agree to follow the rules of the road, including those related to drinking and driving. This also means that you are subject to requests from police officers to submit to a breath or blood test.
However, it is deemed unconstitutional to force an individual to take a breath or blood test without a warrant. This is why you are legally allowed to refuse a breathalyzer test unless there was a serious injury or death involved or you have a previous DWI conviction on your record. At the same time, submitting to a breathalyzer is not an admission of guilt, and you can overcome a DWI charge even if you fail this test.
So again, if you’re pulled over in Texas and a police officer asks you to take a breathalyzer test, you can refuse, but you’re breaking implied consent laws. The same is true for a blood test. In fact, if you refuse to take a blood test (aka a blood alcohol content (BAC) test), a police officer can request a warrant to take your blood. If the warrant is granted, then they are legally allowed to take your blood. At this point, further refusal will result in further consequences.
Is it better to take a breathalyzer or refuse?
That really depends on your individual situation. Why are you refusing? Do you have access to a good lawyer? Have you been drinking, and if so, how much? What’s your criminal history like?
Meanwhile, keep in mind that, despite what many people think, ‘do not blow’ is bad advice in our books. If you’re going to submit to a test, a breathalyzer is almost always a better idea than a blood test because breath tests are viewed as being more susceptible to error. The exception to this rule is if you think you may have a DWI with a .15 blood alcohol level. In this case, it might be time for a blood test.
Related Content: Learn more about what can affect a blood alcohol test
What happens if you refuse a breathalyzer test?
As we mentioned earlier, there are automatic consequences when you refuse to take a breathalyzer test. Namely, refusing a breathalyzer almost always results in a 180-day license suspension.
Now, you might be thinking, “A 180-day license suspension is definitely not as bad as a DWI conviction.” And if you think about it that way, then you would be correct. However, even if you refuse to submit to a test, you can still be arrested for DWI if the police officer has probable cause.
Probable cause for DWI arrest comes in many forms, including but not limited to a breathalyzer test. For example, there’s a Texas field sobriety test that you can be subject to (which is very easy to fail), and if you’ve committed a traffic violation or even look or smell as if you’ve been drinking, that’s enough probable cause for an arrest.
So, let’s say you refuse the test and you’re arrested anyways. If you are eventually convicted of the DWI, then jail time is more likely and a harsher penalty can almost be guaranteed. A jury may also view your refusal as an admission of guilt.
On the flip side, if a test is never completed and you do end up in court, your lawyer could use a lack of chemical evidence to your advantage (although it is never a guarantee).
Have you refused to take a breathalyzer test in Texas?
Weren’t sure if you could refuse a breathalyzer test and bungled your interaction with a police officer? If you’re facing a license suspension as a result of breathalyzer refusal or if you’re facing full-on DWI charges, Thiessen Law firm can help.
At Thiessen Law Firm, we have in-depth experience helping the good people of Houston successfully overcome drinking-and-driving-related charges in court. As a board-certified DWI defense attorney in Houston, Mark Thiessen has successfully achieved over 100 Not Guilty verdicts and thousands of dismissals, making Thiessen Law Firm the go-to law firm for DWI cases in Houston. We know how to fight back and win.
Give us a call at 713-864-900 or fill out our online form to request a free DWI consultation today.
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