Right to Refuse a Breath Test in Texas (and Consequences for Doing So)

March 16th, 2018 by Tad Nelson in DWI

You may have heard that if you are stopped for a DWI in Texas, you have the right to refuse a breath test. Whoever told you this is right, but he or she probably does not understand the consequences of refusal. Refusing a breath test may save you in the short term, but it could cost you in the long run. If you refused a breath test in Texas and want to know what charges the state has in store for you (if any), carefully review the information provided in this post. If you think that you may be in trouble and that a DWI conviction is possible, contact the Houston DWI attorneys at the Law Offices of Tad Nelson & Associates for legal assistance today.

Implied Consent Laws Ruled “Unconstitutional”

Until November of 2014, Texas operated under what is known as “implied consent” laws, meaning that all individuals who applied for and obtained a Texas drivers’ license did so only after consenting to implied consent laws. In accordance with these laws, anyone pulled over for suspicion of driving under the influence is required to take a breathalyzer test and other field sobriety tests the arresting officer may administer. If a person refused to take the tests, a blood or breath test could be administered regardless and additional sanctions ordered as punishment for non-compliance. However, in 2014, the U.S. Supreme Court ruled that implied consent laws are in violation of citizens’ fourth amendment rights and so states are no longer allowed to enforce them.

Consequences for Refusing a Breath Test and Other Field Tests

Just because the U.S. Supreme Court deemed implied consent laws unconstitutional does not mean that there are no potential consequences for refusing to give a breath or blood test. While you have a right to refuse, there are repercussions for doing so. Ramifications for doing so include:  

  • License suspension of 180 days for first time offenders;
  • License suspension for two years for second time offenders; and
  • License suspension for two years for third time offenders.

It is also important to note that once you refuse once, your license will be suspended even if you consent after the officer reads you your rights. If you change your mind and blow a BAC over the legal limit, your license will still be suspended for 90 days. If you still refuse, you have the right to protest the suspension, but you must do so within 15 days. If you fail to protest the suspension or appear for your hearing, your license will be suspended for the full 180 days to two years regardless of whether or not you were driving under the influence.

Should You Refuse to Take the Test?

It generally does not help to refuse to comply with a blood or breath test in Texas. If you refuse, chances are good that your license will still be suspended anyway, and a refusal does not mean that you will not be convicted of a DWI regardless. In fact, the prosecutor may use your refusal against you and claim that you refused BECAUSE you were intoxicated. That said, by refusing to submit to the blood or breath test, you are giving the state less evidence to work with, which is a small win but still a win.

The Best Course of Action When Stopped for a DWI

Really, the best thing you can do is call a cab or an Uber if you have been drinking. However, if you do get caught driving under the influence, comply with the officer’s request for a breath test and any FSTs the officer wants you to perform. Though in doing so you are contributing to the state’s evidence, you are also contributing to your own case. A skilled Houston DWI attorney may be able to spin the evidence in your favor or refute the evidence with his or her own knowledge of the law and either have your charges reduced or dismissed entirely. Whether you refused a breath test and risk license suspension or have already been charged with a DWI, reach out to the Law Offices of Tad Nelson & Associates for help defending your legal rights. Call (281) 280-0100

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