Should I Refuse a Breathalyzer in Texas?

The Direct Answer: Refusal Has Trade-Offs on Both Sides

Refusing a breathalyzer in Texas triggers an automatic 180-day Administrative License Revocation suspension on a first refusal — compared to 90 days for a first failed test. The refusal can also be introduced as consciousness-of-guilt evidence in the criminal trial. But refusing eliminates the per se BAC number that makes prosecutions straightforward. There is no universally correct answer. The right decision depends on your specific situation.

What Happens If You Refuse

License suspension is longer. Under Texas Transportation Code §724, a first refusal triggers a 180-day ALR suspension. A first failure triggers 90 days. You still have the 15-day window to request an ALR hearing — which we file the day you retain us — but the suspension period is doubled.

APD will likely seek a blood draw warrant. APD officers routinely obtain blood draw warrants under Transportation Code §724.017 when defendants refuse the breath test. A warrant-based blood draw is constitutionally obtained and produces evidence that is often harder to challenge than an Intoxilyzer 9000 result. The refusal may eliminate the breath test result while producing blood evidence anyway.

The refusal can come in at trial. A prosecutor can argue to the jury that you refused because you knew you were intoxicated. This is consciousness-of-guilt evidence and it is admissible in Texas.

What Happens If You Take the Test

A result below 0.08 does not end the case. The prosecution can still pursue DWI on the impairment theory — loss of normal use of mental or physical faculties — using the officer's observations and SFST results. A low-positive result can still be introduced as evidence of impairment.

A result at or above 0.08 gives the prosecution a per se theory. This is easier to prosecute and requires less reliance on the officer's subjective observations. However, the Intoxilyzer 9000 result is still challengeable on maintenance, calibration, operator certification, and partition ratio grounds.

A result at 0.15 or above elevates the charge. A BAC of 0.15 or above upgrades a first DWI from a Class B to a Class A misdemeanor — a higher fine, longer maximum sentence, and mandatory ignition interlock device on conviction.

The 15-Day ALR Deadline Applies Either Way

Whether you provided a breath sample or refused, the Administrative License Revocation clock started the moment the officer issued the DIC-25 notice at the scene. You have exactly 15 days from that date to request an ALR hearing with the Texas DPS. Miss the deadline and your license is automatically suspended at day 40 regardless of what the breath test result was. Every Austin DWI attorney at The Hull Firm files the ALR request the day you retain us.

What to Do After a DWI Arrest in Austin

The breathalyzer decision has already been made by the time you read this. What matters now is acting immediately on the ALR deadline and getting an attorney working on your defense. Do not make any additional statements to APD. Write down everything you remember about the stop — what the officer said the traffic violation was, whether a field sobriety test was administered, what you were told about the breath test. Call 512-599-9999 today.