Can You Refuse a Breath Test in Houston, TX?

12 Aug 2022
Greco Neyland, PC

If you are suspected of driving while intoxicated (DWI), Texas police officers will generally ask you to take a breathalyzer test. If your blood alcohol content (BAC) is found to be at 0.08 percent or above, then you will be arrested.

You do have a choice about whether to take the test, but refusing to take it can lead to consequences.

Texas is an Implied Consent State

The 2016 Supreme Court case Birchfield v. North Dakota does allow states to criminalize refusing a warrantless breath test, because “a breath test is designed to serve the government’s interest in preventing drunk driving, which is greater than merely keeping currently drunk drivers off the roads, and does so better than other alternatives.”

Nevertheless, Texas has declined to criminalize this refusal. It has, however, opted to remove a privilege: the privilege of owning a driver’s license.

In Texas, you imply consent to take a breathalyzer test every time you get on the road. This means if you refuse, Texas can suspend your driver’s license. The officer will take your physical copy on the spot. You can request a formal hearing to get it back, if you get your lawyer to do this within 15 days of your arrest. If we are unable to help you keep your license, it will be suspended for six months. If you have already had one alcohol or drug related charge in the last ten years, your license will be suspended for two years.

Refusing could mean depriving law enforcement of evidence, but this doesn’t always help.

If the police obtain a search warrant from a judge, they may subject you to a breath or blood test. In addition, the prosecution will likely argue that your refusal indicates knowledge of your guilt. It’s sometimes easier if you simply take the test. There are multiple ways that we can undermine the validity of the test, as false breathalyzer test results are very common. Even eating a bit of ice cream before you take one can throw the results. So can being on the keto diet.

In addition, there are instances in which blood alcohol testing is mandatory. This includes any time you are in a serious accident that causes serious injuries or death. It also includes anyone who police suspect of a DWI who already has a prior conviction for intoxication assault, intoxication manslaughter, two prior DWI convictions, or one prior DWI conviction when a child was in the car.

Get Help Today

If you’ve been charged with a DWI you’ll need immediate help. Even one DWI can have lifelong consequences.

Fortunately, there are a lot of avenues we can explore when deciding how to handle your DWI case. Contact us to schedule a case review. We may just be your best chance of securing your freedom and future.

See also:

5 Mistakes You Need to Avoid in Your Houston, TX Criminal Case

How Pretrial Diversion Works in Houston, TX

How to Exercise Your Right to Remain Silent After a Houston, TX Arrest

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