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Refusing a Breathalyzer test in Texas

On Behalf of | Sep 17, 2021 | Criminal Defense |

If an officer suspects that a driver is drunk, they usually pull the driver over for testing. A common test that officers use to check blood alcohol content is the Breathalyzer. Drivers in Texas may wonder if they can refuse the test and what happens next.

Overview of DWI laws

All states have implied consent laws, which means drivers consent to chemical testing by having a license. If a driver tests 0.08 blood alcohol content after a Breathalyzer test, they could get charged with drunk driving. Texas calls impaired driving DWI, or driving while intoxicated. A charge based on BAC alone is called a per se DWI, which means the prosecution doesn’t need any more evidence. Drivers can also get a DWI even if they register below 0.08 and if the vehicle isn’t in motion.

What happens if you refuse to take the test?

A driver may refuse a Breathalyzer test. An officer cannot force consent, but they must inform the driver of consequences. If a driver refuses to take the test, they must sign a document stating that they knew of the consequences. They face an immediate 180-day license suspension for refusal and a 90-day license suspension if they submit and fail.

A driver can usually refuse field sobriety or a portable breath test without penalties. Officers may use preliminary portable breath tests to establish probable cause, but the Texas Department of Safety has not approved them. However, officers may enforce a Breathalyzer in some situations, such as accidents with injury or death or when the driver has past convictions.

Some prosecutors believe that refusing a Breathalyzer test is an admission of guilt. While refusals can be used against a driver, Breathalyzer results aren’t always accurate, which the defense may point out.