Can I refuse a breath alcohol test in Texas?

Most people in Texas arrested on DWI charges have the right to refuse to take a breath or blood test, though there are consequences and exceptions.

Several steps may be taken when someone in Texas is pulled over on suspicion of drinking and driving. The law enforcement officer may ask the driver if he or she has been drinking. The driver may be asked to step out of the car and take a breath test or other sobriety tests.

In each of these situations, the driver has certain rights. For example, the driver does not have to answer the law enforcement officer when asked about drinking and driving. However, the driver is expected to take a breath test. Understanding Texas' implied consent law and the consequences is imperative for any driver in the state.

The implied consent law

Under Texas' implied consent law, drivers are required to take a breath or a blood test if they have been lawfully arrested on charges of driving while intoxicated. The arresting officer is permitted to choose which test is taken. Additionally, the test must be administered as soon as possible.

It should be noted that after taking the test that law enforcement requires, drivers are permitted to request an additional blood test. That test may be administered by a medical professional that the driver chooses and must be taken within two hours of the arrest.

Right to refusal

While the law states that these tests are mandatory, it does enable drivers to refuse to take them. Upon arrest, the law enforcement officer should alert the driver what the consequences are of refusing. The officer should also alert the driver as to what will happen if the test is taken and the blood or breath alcohol test is above the legal limit.

There are a few exceptions to this rule. An officer can force a driver to take a test if the DWI is associated with a serious injury or death. Additionally, if the driver has had two prior DWI convictions or one such conviction that involved a serious injury or death, a test will be mandatory.

Possible penalties

As the Texas Department of Public Safety points out, refusing to take the test will result in the suspension of the person's driver's license. The length of the suspension is based on how many prior offenses the driver has had, such as the following:

  • The license will be suspended for 180 days for a first offense.
  • The license will be suspended for two years for a second offense.
  • The license will be suspended for two years for a third and subsequent offense in 10 years.

At the time of the refusal, the law enforcement officer will take the person's driver's license and issue a temporary permit that will last for 41 days. Drivers have a right to challenge the license suspension in the 15 days following the arrest.

Anytime someone has been charged with a DWI or related crime, it is essential to build a strong defense. People who have concerns about this topic should speak with a criminal law attorney in Texas.

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