Consequences of Refusing a Breathalyzer Test in Texas

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Texas law enforcement officers may give a Breathalyzer to individuals whom they suspect of drinking and driving. The results of this test are often used to help establish a criminal defendantís guilt of driving while intoxicated. In order to avoid providing such evidence that may ultimately be used against the defendant, the suspect may decide to refuse to take such a test. However, there may be consequences for refusal.

Implied Consent

Texas has an implied consent law which states that a person suspected of drinking and driving may be required to give a blood, breath or urine sample as a condition of operating a motor vehicle in the state of Texas. A law enforcement officer may ask a suspect to submit to a test if he or she suspects the individual of driving while drunk or operating a watercraft while drunk.
In order for the implied consent to apply, drivers must be lawfully arrested by an officer who has probable cause to suspect the driver is intoxicated.


Despite this law, some individuals may still refuse to take a test. A law enforcement cannot force this type of test in most situations.

Refusal Warning

If an individual refuses to take a test, the law enforcement officer must provide a mandatory warning that refusal will result in an automatic suspension of the driverís license for 180 days. The law enforcement officer will have the defendant sign a document that states that he or she was informed of the consequences of the refusal and that the defendant still chose to refuse it.

Refusal of Other Tests

Sometimes a law enforcement officer may ask a driver who is suspected of drinking and driving to submit to a variety of standards, often Standardized Field Sobriety Tests. They may also be asked to take portable breath test. The implied consent law does not extend to these types of tests. A driver in Texas is within his or her rights to refuse these tests.
The standardized tests include the walk and turn, one-leg stand and the horizontal gaze nystagmus. These tests and the portable breath test are often not reliable indicators of inebriation. These tests have resulted in false positives and in failures by
people who are completely sober.

Consequences of Refusing the Test

A personís driverís license can be taken by the officer on the scene. He or she may be issued a temporary driving permit to use when he or she leaves jail. These administrative penalties can result when a person who is lawfully arrested refuses a blood, breath or urine test. The law enforcement officer can choose which test to administer.
Additionally, a person who refuses a test may still be arrested and taken to jail because of suspicion of drunk driving even if there are not test results that confirm the driver was intoxicated. He or she may still be found guilty of drunk driving and can face all the same penalties related to a drunk-driving conviction, in addition to the administrative penalties for refusing the test. The fact that a person refused a test can be used as evidence against him or her at trial that he or she was impaired.

Consequences of Failing the Test

Many people may refuse to take a test because they are afraid to fail it. If a person submits to a test such as the Breathalyzer and the person has blood alcohol concentration of more than 0.08 percent, the defendant will face an automatic license suspension of 90 days.


Despite the possible risks, there are some potential reasons why a person may choose to refuse a test. By refusing a test, a person refuses to provide evidence to a prosecutor that may later be used to convict him or her or to push for harsher penalties in court. Lawyers may not advise individuals to help a prosecutor to have evidence that he or she is guilty. In the United States, a person is innocent until proven guilty, so advising a client to take such a test that can result in providing the prosecutor evidence that is used against him or her. The burden of proof is not on the prosecutor, and the defendant should not have to try to prove he or she is innocent.

Legal Assistance

An individual who has been charged with drunk driving or who refused to take a Breathalyzer test may wish to contact an experienced criminal defense lawyer for assistance. It is important to quickly contact a lawyer to retain driving rights. You only have 15 days to schedule an administrative hearing to prevent your license from being suspended. A criminal defense lawyer can lodge legal defenses against these charges, such as arguing that the stop was unwarranted.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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