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What happens if I refuse a breathalyzer test?

On Behalf of | Mar 31, 2023 | DWI

Whether an officer suspects you to be driving under the influence or simply flags you during a routine roadside check in Texas, you can be the subject of a breathalyzer test. But the question is, can you refuse to take it? If you do, what are the consequences?

Possible consequences for refusal

While an officer cannot force one to submit to a breathalyzer test, they can warn the person that their refusal will result in an automatic suspension of their driver’s license. If the driver agrees, the officer will not demand them to take the test but will ask them to sign a document stating that they refuse to give their consent despite the warning.

License suspension could range from 180 days for the first offense to two years if with prior enforcement contacts. The test refusal will already count as an enforcement contact.

Implied consent

Under Texas laws, law enforcement officers may administer a breathalyzer test upon drivers suspected of DWI under implied consent. However, the implied consent rule will only apply if the officer has probable cause to suspect that the driver is intoxicated and has made an arrest. Otherwise, the law considers the test illegal.

However, one should note that the police can take a driver’s breath sample without their consent if the driver:

  • Was in a DWI accident wherein someone sustained severe injuries or died
  • Has a previous DWI conviction with a minor in the car
  • Has a previous DWI assault or manslaughter conviction
  • Has two previous DWI convictions

Know your rights

Knowing when blood alcohol content (BAC) tests are legal and if one can refuse to submit can help protect one’s rights. If you believe that the officer has improperly administered the breath test, it may be a ground to contest the validity of a DWI charge.