Should I Refuse a Breathalyzer in Texas?

The Direct Answer: Refusal Has Trade-Offs

Refusing a requested breath or blood specimen can trigger separate ALR consequences, including a longer first-offense suspension than a qualifying test failure: generally 180 days for a first refusal compared with 90 days for a first qualifying failure. A refusal can also be offered as evidence in the criminal case. Refusing does not necessarily eliminate BAC evidence, because officers may seek a search warrant for a blood specimen. There is no universally right answer, and this page is general information rather than advice for any particular stop.

Roadside Tests vs. Evidentiary Specimen Requests

A portable breath test at the roadside is different from an evidentiary breath or blood specimen requested after arrest under Texas implied-consent law in Transportation Code Chapter 724. The ALR refusal consequences discussed on this page generally relate to the evidentiary specimen request and the statutory warnings provided with it. The type of test, the warnings given, and the circumstances all matter.

What Can Happen After a Refusal

A longer ALR suspension may apply. A first refusal generally carries a 180-day ALR suspension, compared with 90 days for a first qualifying failure. The hearing-request deadline still applies, and a timely hearing request can allow the suspension to be contested.

Police may seek a blood search warrant. In Travis County, officers often seek a search warrant for a blood specimen after a refusal. Blood evidence obtained under a warrant can still be reviewed for the warrant's validity, the collection procedure, the chain of custody, and the laboratory analysis.

The refusal may be offered at trial. Texas law generally allows evidence of a refusal to be introduced in the criminal case. How much weight it carries depends on the facts and the rest of the evidence.

What Can Happen After Providing a Specimen

A result below 0.08 does not necessarily end the case. The prosecution can still pursue DWI on the impairment theory, loss of the normal use of mental or physical faculties, using the officer's observations and SFST results.

A result at or above 0.08 can support a per se theory. The Intoxilyzer 9000 result can still be evaluated for maintenance, calibration, operator certification, observation-period, and other reliability issues.

A result at 0.15 or above can elevate the charge. Under Penal Code §49.04(d), a DWI with an alcohol concentration of 0.15 or more at the time the analysis was performed is a Class A misdemeanor, with a higher maximum fine and sentence. Ignition-interlock requirements may apply depending on the disposition and court.

The ALR Deadline Applies Either Way

Whether a specimen was provided or refused, Texas DPS generally requires an ALR hearing request within 15 days after the person is served with the suspension notice. The DIC-25 or other applicable notice should be reviewed to confirm the deadline. In some blood-test cases, the notice of suspension arrives later, after the lab result, and DPS instructs that the hearing request should not be submitted until that notice is received. When representation includes the ALR proceeding, the firm acts promptly to request the hearing before the applicable deadline. Learn more from an Austin DWI attorney at The Hull Firm.

What to Do After a DWI Arrest in Austin

By the time most people read this, the specimen decision has already been made. What matters next is reviewing the notice you received for the ALR deadline and getting the defense started. Avoid discussing the facts of the case with law enforcement. Write down what you remember about the stop, including the reason the officer gave for the stop, whether field sobriety tests were administered, and what you were told about the breath or blood request. Call our DWI attorney in Austin at 512-599-9999.