Should I Refuse a Breathalyzer in Texas?

Refusal Has Trade-Offs on Both Sides

Refusing a breathalyzer in Texas triggers an automatic 180-day ALR 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 at Cadena-Reeves. 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. When representation includes the ALR proceeding, the firm acts promptly to request the hearing before the applicable deadline.

SAPD will typically seek a blood draw warrant. SAPD 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 while producing blood evidence from the Bexar County Crime Laboratory anyway.

The refusal can come in at trial. The Bexar County DA’s office 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 using the officer’s observations and SFST results.

A result at or above 0.08 gives the prosecution a per se theory. This is easier to prosecute. 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 — higher fine, longer maximum, mandatory ignition interlock on conviction.

The 15-Day ALR Deadline Applies Either Way

Whether you provided a breath sample or refused, the ALR clock started the moment the officer issued the DIC-25 notice. You have exactly 15 days to request the hearing. Call 210-899-0732 immediately — the breathalyzer decision has already been made. What matters now is acting on the ALR deadline and getting your defense started.