Texas's DWI Implied Consent Laws and Blood or Breath Alcohol Tests

If you are stopped for driving while intoxicated (DWI), can you refuse chemical testing?

In most DWI cases, the arresting officer will request that the driver take a blood or breath test. The purpose of these tests is to determine the amount of drugs or alcohol in the driver's system. Blood and breath test results are often crucial for the prosecution in proving a DWI charge at trial. In order to ensure that this evidence is available for use in prosecutions, Texas has an implied consent law that generally requires drivers to comply with an officer's request for testing.

This article covers Texas's implied consent law and the penalties you might face for refusing to take a blood or breath test.

Texas's DWI Implied Consent Law

Texas's "implied consent" law requires all drivers lawfully arrested for a DWI to submit to chemical testing to determine blood alcohol concentration (BAC) or the presence of drugs in the driver's system.

What's Considered a "Lawful" DWI Arrest in Texas?

Drivers aren't required to take a blood or breath test unless the officer makes a lawful arrest. For an arrest to be lawful, the officer who stops you must have probable cause to believe you've been driving under the influence of alcohol or drugs.

Common factors that might give an officer probable cause to make a DWI arrest include reckless driving, the odor of alcohol on the driver, poor performance on field sobriety tests, and the like.

Blood or Breathalyzer Test—Who Gets to Decide?

The officer gets to decide which type of test—blood or breath—you must take. But once you submit to the officer's test, you have the right to have a blood test taken within two hours of your arrest by a medical professional of your choice (and at your own expense).

Can You Be Forced to Take a Blood or Breathalyzer Test?

Normally, an officer cannot force you to take a test. If you decide not to submit to testing, you'll face consequences, but the officer generally must respect your choice.

However, BAC testing is mandatory if you:

  • are in an accident involving serious injury or death, or
  • have a prior conviction for intoxication assault, intoxication manslaughter, two prior DWI convictions, or one prior DWI conviction with a child in the car.

In any of these circumstances, you can be forced to take a test even if you refuse.

Texas Officers Must Explain Refusal Consequences

An arresting officer is required by law to explain the consequences of refusing a test—that you'll be fined, lose your license, and face jail time if convicted of a DWI. The officer must also explain you don't have the right to speak to an attorney prior to taking the test and that a test refusal can be used against you in court.

What Happens If I Refuse a Pre-Arrest Breathalyzer in Texas?

Generally, the implied consent law doesn't require drivers to submit to chemical test prior to a lawful arrest. However, to establish probable cause to make an arrest, an officer might ask you to take a voluntary "preliminary alcohol screening" (PAS) test. A PAS test is typically administered with a handheld breath test device (often called a "breathalyzer") at the roadside.

Consequences of Refusing Post-Arrest Testing in Texas

The penalties for refusing to take a chemical test are:

  • 180 days of license suspension for a first offense, and
  • two years of license suspension if you have at least one alcohol or drug-related "enforcement contact" within the last ten years.

DWI convictions, BAC test refusals, and failed BAC tests all counts are prior enforcement contacts.

Should You Refuse to Take a Mandatory Chemical Test?

The wisdom of refusing a post-arrest chemical test depends on the circumstances. And refusal may not help you avoid a conviction—you can be found guilty even without test results. In fact, the prosecution can argue to a jury that your refusal shows consciousness of guilt—that you refused to test because you knew you were intoxicated.

Get Help With Your DWI

If you've been arrested for DWI in Texas or any other state, get help from an experienced DWI attorney. A DWI conviction—especially one involving physical injuries or repeat offenses—carries serious consequences. So your best bet is to find an attorney who knows the law and your local court system.

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