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What Happens If I Refuse A Breathalyzer Test?

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What Happens If I Refuse A Breathalyzer Test?


A driver is considered legally intoxicated in Texas if their blood-alcohol content (BAC) is measured at 0.08 percent or greater. When police make a DWI arrest, they will typically ask the suspect to take a chemical test–such as a Breathalyzer–to establish their precise BAC. So what happens if you simply refuse to take the test?

In most circumstances, the police cannot actually force you to take a Breathalyzer. But that does not mean there are no consequences for refusal. Texas follows an “implied consent” rule when it comes to chemical testing of suspected drunk drivers. This basically means that if you refuse a lawfully requested chemical test, the State of Texas can suspend your driver’s license, regardless of whether you are actually convicted of criminal drunk driving.

How Implied Consent Works

The Texas Transportation Code states that when a person is arrested for suspicion of DWI they are “deemed to have consented” to a blood or breath test. Essentially, by driving on a public road in Texas, the law states you have given “implied consent” to be tested.

Now, as suggested above, implied consent does not mean actual consent. You can still refuse the Breathalyzer under normal circumstances. But refusal means the arresting officer will serve you with a notice of suspension of your driver’s license. The officer will immediately take your license and issue you a temporary driving permit, enabling you to continue driving pending an administrative suspension by the Texas Department of Public Safety.

If the Department upholds the suspension, you will lose your driving privileges in Texas for at least 180 days. And if your driving record has at least one prior “alcohol-related or drug-related enforcement contact” within the past 10 years, the suspension period is extended to 2 years. A prior “contact” is not limited to a DWI conviction. It can also include a prior failed BAC test or refusal to take a test.

When Can the Police Take a Breathalyzer Without Your Consent?

There are limited situations when a police officer is required to take a blood or breath sample from a DWI suspect with or without their consent. These situations include:

  • an accident where any person has died, including the suspect;
  • an accident where someone other than the suspect has suffered a “serious bodily injury”;
  • an accident where someone other than the suspect has suffered any bodily injury that required treatment at a hospital; and
  • the suspect has a prior conviction for intoxication assault, intoxication manslaughter, DWI with a child in the car, or any two drunk driving offenses.

Contact Pearland, Texas, Criminal Defense Lawyer Keith B. French Today

A drunk driving arrest can have a serious impact on your life. An experienced Pearland DWI/DUI lawyer can help ensure the police and the courts respect your rights. Contact Keith B. French Law, PLLC, today to schedule a consultation with a member of our criminal defense team.


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