Texas law requires you to take a blood or breath test if you are arrested for a DWI. Texas’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving or boating while intoxicated, then you consent to taking one or more chemical tests of your blood or breath for the purpose of determining your blood alcohol content (BAC). The test must be taken as soon as possible from when you were last driving or boating, and the officer gets to choose which test you take. Once you submit to the officer’s test, however, you have the right to have a blood test taken within two hours of your arrest by a medical professional of your choice.
You can read Texas’s implied consent law in the Texas Transportation Code Annotated 724.011.
Refusing to Take the Test
Once you are arrested, the officer should tell you and give you notice in writing that if you refuse to take a test, then evidence of your refusal can be used against you in court and your license will be suspended for at least 180 days. The officer should also tell you that if you decide to take a test and the results show that your BAC is above the legal limit, then your license will be suspended for at least 90 days. After explaining these consequences, the officer can ask you to take a test.
If you refuse, the officer will have you sign a statement that says he or she warned you of the consequences of refusal, asked you to take a test, and you refused. Then the officer will take your license. In its place you will get a temporary permit that is good for 41 days. Within the first 15 days you can request a hearing to challenge the suspension of your license. If you do not request a hearing, or if you do but fail to prove that the officer did not have a reasonable belief that you had driven drunk or that you actually did not refuse a test, then your license will remain suspended for 180 days if this is your first refusal. For your second or any subsequent refusal within ten years, the suspension will last for two years.
Generally, an officer cannot make you take a test if you refuse. There are exceptions, however. You must take a test if your current arrest involved in an accident where someone else was seriously injured or killed. Also, you will have to take a test if you have had two prior DWI convictions or if you have had only one prior DWI conviction but there had been a child in the car, or someone was seriously injured or killed. Finally, the officer does not need to ask your permission for a test if you were in an accident that leaves you unconscious or even dead.
The consequences of refusal are found in the Texas Transportation Code Annotated 724.035.
Should You Refuse to Take a Mandatory DWI Test in Texas?
It usually does not help you to refuse to take a blood or breath test when you are arrested. For a first DWI in Texas, your license will be suspended for 90 days and you will have to spend three days in jail. If you happened to have an open container of alcohol in your car or boat when you were arrested, then you will spend six days in jail. This is more severe than a 180-day suspension for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DWI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DWI.
Get Help With Your DWI
If you have been arrested on a DWI charge in Texas or any other state, get help from an experienced DWI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DWI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DWI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.