Can I Refuse a Breathalyzer Test in Texas?

In Texas, some people face their first encounter with the law when they get arrested for driving drunk. Usually, these instances commence with a vehicle being pulled over by a law enforcement officer.

The officer watches the driver closely while stopping. The officer may think the driver is drunk based on their behavior and what they say. After the officer has enough evidence, they will arrest the driver for driving under the influence of alcohol.

After a DWI arrest, the usual next step is to request a breath or blood sample from the suspected drunk driver. This sample is used to check their blood-alcohol level. In Texas, a person is deemed legally intoxicated if their blood alcohol concentration (BAC) is 0.08% or above.

The most commonly employed method for measuring BAC involves collecting a breath sample from the driver. This process is sometimes referred to as “taking a Breathalyzer.” However, the term is commonly used to describe any breath test that measures BAC, not just a particular brand of instrument.

A question frequently asked is, “Can I decline to take the Breathalyzer?” If you’ve had some drinks before the police stop you, it’s normal to be unsure if your BAC is below 0.08%. Therefore, you might hesitate to give the police evidence that they could use against you in court.

From a legal standpoint, you have the right to refuse taking the Breathalyzer. However, it is important to note that even if you refuse, the information can still be used against you in court. Additionally, the officer has the authority to obtain a search warrant and collect your blood for testing. Furthermore, refusing the Breathalyzer can result in significant non-criminal consequences, particularly the suspension of your driver’s license.

What Is The Implied Consent Law?

Refusing a Breathalyzer can lead to non-criminal consequences due to the idea of “implied consent.” Every state, including Texas, requires licensed drivers to take a Breathalyzer test if they are lawfully arrested for DWI. If the driver chooses to refuse, they may face an automatic suspension of their driver’s license.

Is it fair for the government to punish you if you don’t give them evidence that could prove you’re guilty? The problem is that a driver’s license is seen as a privilege given by the government, not a basic right. In 2016, the US Supreme Court said states can’t punish people with jail for refusing a Breathalyzer test.

Nevertheless, states still have the authority to take away someone’s right to drive. The Supreme Court also differentiated between breath tests and blood tests in their decision.

Police can give a breath test without a warrant, but they must have one to do a blood test. The judges believed that checking someone’s breath was less invasive than taking a blood sample. Therefore, it did not cause significant concerns about privacy.

How Does The Implied Consent Law Work?

What are your specific legal rights when asked to take a Breathalyzer by the police? Firstly, it’s important to note that the implied consent law comes into effect only after you have been arrested for DWI.

Merely being pulled over by an officer is insufficient. The law necessitates that the officer must have “probable cause” to make an arrest. In legal terms, this means more than mere suspicion but less than the level of evidence required for a criminal DUI or DWI conviction (i.e., proof beyond a reasonable doubt).

After being apprehended by the police, it is expected that you will comply with a Breathalyzer test according to the implied consent law. However, the statute also acknowledges that you cannot conduct such a test if you explicitly “refuse to submit.”

Nevertheless, there are exceptions to this as well. Police can obtain a search warrant from a judge to collect your blood sample without your consent. This can only happen if they have a valid justification. This may occur in any suspected DWI case, but the likelihood increases under the following circumstances:

• If you caused an accident that resulted in the death or serious bodily injury of another person.
• In case there was a child below 15 years old in your car when you were apprehended.
• If you were previously convicted of a DWI with a child in the car
• If you have prior records of at least one DWI violation.

To summarize, you have the freedom to refuse a Breathalyzer test, and the police must respect your decision. However, this refusal may not prevent them from ultimately obtaining your blood alcohol content (BAC) through other means.

Does Refusing a Breathalyzer Hurt a DWI Case?

First, let’s examine how refusing a Breathalyzer test can impact your DWI case under implied consent law. After that, we can discuss the civil penalties associated with it. It’s crucial to note that the prosecution can use your refusal as evidence against you during trial. Your Fifth Amendment right to not incriminate yourself is not violated.

In fact, the prosecution is free to argue that your refusal serves as proof that you were aware of your intoxication and unable to drive safely at the time of your arrest. However, a skilled defense attorney can present various reasons to a jury explaining why an innocent person might refuse to consent.

Now, you may be wondering, “Without the results from a Breathalyzer test, how can the prosecution even prove my intoxication?” Breathalyzer results are important in DWI cases, but the prosecution doesn’t always have to prove the defendant’s exact BAC in court. In criminal law, there are two ways to establish intoxication:

• When a person’s BAC exceeds .08
• When an individual lacks “the normal use of mental or physical faculties due to the consumption of alcohol.” While BAC is the simplest method of proof, it is not the sole method.

Taking into account the alternative approach to proving a point, imagine a scenario where a law enforcement officer witnesses a motorist dangerously zigzagging through traffic. The officer proceeds to pull the vehicle over and detects a potent odor of alcohol emanating from the driver’s breath.

Furthermore, the officer observes multiple empty beer containers positioned on the front seat alongside the driver. Even if the driver refuses to take a Breathalyzer test after being arrested, it is still possible for a jury to convict the defendant of DWI based solely on video evidence and the officer’s testimony.

Can The Refusal of a Breathalyzer Test Impact Your Driving Privileges?

As per the law, the Texas DPS is required to commence a civil procedure known as Administrative License Revocation (ALR). This process begins at the time of your arrest.

If you refuse to take the Breath analyzer test, the arresting officer will promptly confiscate your driver’s license. They will also provide you with a written notice of license suspension. Nevertheless, the suspension does not become effective right away, which is the reason why you are granted a provisional license.

According to the legislation, you have a 15-day window from the date of your arrest to petition for an official hearing with the Department of Public Safety. Failure to request a hearing within this timeframe will be considered a waiver of your right to a formal hearing, resulting in a default judgment that suspends your license.

In the event that you decide to request a hearing, it is important to note that the judge overseeing your criminal DWI case will not be the same judge presiding over it. Instead, you will be required to appear before an administrative law judge (ALJ) who is employed by the Department of Public Safety (DPS).

Arrested? Don’t Plea, Call Me!

If you are facing DUI charges of controlled substances, it is highly recommended that you seek the assistance of an experienced criminal defense lawyer. A hired DWI charges lawyer can provide you with essential legal advice, guidance, and representation throughout the legal process.

As an experienced criminal defense attorney we can review the facts of your driving while impaired case, investigate the charges against you. And develop a strong legal defense strategy tailored to your specific situation. As well as negotiate with the prosecution on your behalf and advocate for your rights and interests in court.