Call for a free consultation with an attorney  903-357-5269

Interior Photo of Office of Jeremy J. Poet Law Firm, PLLC
Poet Law | Jeremy J. Poet Law Firm, PLLC
Poet Law | Jeremy J. Poet Law Firm, PLLC

A Lawyer You Want In Your Corner

Call for a free consultation with an attorney  903-357-5269

Can you refuse a DWI breath test?

On Behalf of | Sep 19, 2023 | Firm News

Can you refuse a roadside DWI breath test in Texas? The answer is, technically, yes, but you will face serious consequences for doing so.

Powerful evidence

When Texas police pull you over on suspicion of drunk driving, they have several ways of determining whether you are too intoxicated to drive. One is simply to observe your behavior and note whether you’re slurring your words or showing other signs of drunkenness. They may also conduct a roadside sobriety test, in which they ask you to walk a straight line or perform other simple tasks. They write down their observations and the prosecution can use these notes as evidence against you in court.

That said, in many cases, the most powerful evidence is the result of a blood alcohol concentration (BAC) test. A person who has a BAC of 0.08% or higher is presumed too drunk to drive. For those with a commercial driver’s license, this legal limit is even lower: 0.04%. For drivers under age 21, any percentage of BAC at all can put them over the legal limit.

Police get BAC test results in several ways. They can take a driver to a facility where they can get someone to administer a blood or urine test. The results of these tests are considered highly accurate but police may need to get a search warrant before they can administer these tests.

The law makes it much easier for police to administer a BAC test using a Breathalyzer or similar chemical breath test device. In fact, Texas’ “implied consent” law holds that, when they sign up for a driver’s license, drivers consent in advance to taking these tests when they are stopped on suspicion of drunk driving.

However, chemical breath tests are considered less accurate at determining BAC levels than blood or urine tests.

The ‘no refusal’ policy

Since a BAC test can be powerful evidence, you may be tempted to refuse to take a breath test when you are pulled over. This could deny the prosecution some of the evidence they will use against you.

However, refusing a breath test comes with consequences of its own. For one, if you refuse a breath test, the state of Texas will suspend your driver’s license for one year. For another, the prosecution can use your refusal as evidence against you in court.

What’s more, many Texas police departments operate under a “no refusal” policy. When a person refuses to take a breath test at a roadside, police quickly submit an electronic request for a search warrant in order ot obtain a blood or urine test. This means that if you refuse, the police have an option to quickly perform a BAC test in a more accurate — and much more intrusive — manner.

Defending against breath test evidence

It makes sense that many drivers would rather take the test than face the consequences for refusing. So, it’s good to know that if you do submit to a breath test, it’s not the end of your case.

You have the right to a defense against DWI charges, and one defense strategy you may use involves questioning the accuracy of the breath test’s BAC results.

For instance, you may argue that the device itself was faulty, or that the arresting officer did not use the device properly. If you can cast doubt on the BAC test results, you can defeat a powerful piece of evidence that is being used against you.