Can I Refuse a Breathalyzer or Blood Test After a DWI in Texas?


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If you were pulled over on suspicion of driving while impaired (DWI) in Texas, the police might ask you to take a series of field sobriety tests, a breathalyzer, and/or blood test.

While these tests are not the most accurate way of determining a driver’s level of impairment, law enforcement use them to charge drivers with DWI in Texas. For this reason, many drivers wonder if they have a right to refuse a Breathalyzer or blood test when stopped by the police.

If you have been pulled over and asked to take a breath or blood test, you can refuse to take the test. However, your refusal may result in your arrest and other negative consequences. It is best to consult with a Belton criminal defense lawyer at The Law Office of Brett H. Pritchard to discuss your rights and options following a DWI arrest.

What is the Implied Consent Law in Texas?

Under the implied consent law, every motorist lawfully arrested for DWI is required to submit to testing to determine the level of blood alcohol concentration (BAC).

You give the “implied consent” when you obtain a driver’s license in Texas, pursuant to Texas Transportation Code § 724.011. The implied consent law, which requires you to submit to a blood or breath test upon request, is applicable only when you have been lawfully arrested for DWI.

If the police officer has probable cause to believe that you are under the influence of alcohol or drugs, they can decide which type of test to request.

Under Texas Transportation Code § 724.09, you have a right to have a physician of your choice take a sample of your blood for an independent analysis.

Can You Refuse a Breathalyzer or Blood Test in Texas?

If you do not want to submit to Breathalyzer or blood testing, a law enforcement officer cannot force you to take the test. However, refusing to take a Breathalyzer or blood test will result in negative consequences.

Under Texas law, you are required to submit to a breath or blood test if:

  1. You were involved in an accident resulting in serious bodily injury or death when the officer reasonably believes that your impairment caused that accident.

  2. You are driving while intoxicated with a passenger under the age of 15.

  3. You have been previously convicted of or placed on community supervision for intoxication assault (Texas Penal Code § 49.07), intoxication manslaughter (Texas Penal Code § 49.08), or DWI with a child passenger (Texas Penal Code § 49.045).

  4. You have two or more prior convictions for driving, flying, or boating while intoxicated or assembling or operating amusement rides under the influence of alcohol or drugs.

In any of these circumstances, the police officer can collect a sample of your breath or blood without your consent if they have a reasonable belief that you are driving a motor vehicle in a public place while intoxicated.

What Are the Consequences of Refusing to Take a Breathalyzer or Blood Test?

While you have a right to refuse to take a Breathalyzer or blood test in Texas, doing so will result in serious consequences, including a suspension of your driver’s license.

Under Texas law, an arresting police officer must explain to you the consequences of refusing to take a breath or blood test. Possible penalties for refusing to submit to DWI testing include:

  • Fines

  • Jail sentence

  • Driver’s license suspension

The length of your license suspension for refusing a Breathalyzer or blood test in Texas depends on how many times you have refused or failed DWI tests in the past:

  1. If it is your first refusal, your driver’s license could be suspended for 180 days; or

  2. If you have two or more prior refusals, the suspension of your license could last two years.

If you refuse a Breathalyzer test, you can request an administrative hearing where you have an opportunity to prevent a revocation of your driver’s license. To request the hearing, you must contact the Texas Department of Public Safety (TxDPS) within 15 days of your arrest.

Without the Administrative License Revocation (ALR) hearing, your license will be suspended for the maximum allowable period. It is advised to have an experienced criminal defense lawyer on your side to contest the license suspension and secure a positive outcome at the hearing.

Taking vs. Refusing a Breathalyzer or Blood Test in Texas

Despite the negative consequences of refusing to take a Breathalyzer and blood test in Texas, there are potential benefits of refusing to submit to testing.

  1. First of all, by refusing to take a test, you leave the prosecution without enough affirmative evidence to convict you of driving while impaired (DWI);

  2. Second of all, the accuracy of Breathalyzer and blood test results is a subject of intense debate. There are many factors that could cause a false reading; and

  3. Third of all, a DWI conviction typically carries harsher penalties than refusing to take a test.

The downside of refusing to take a Breathalyzer or blood test is that you are giving the prosecutor an excuse to argue that you refused the test because you knew you would fail it. For this reason, it is critical to seek help from a Belton criminal defense lawyer to protect your rights and get the DWI dismissed or reduced.

Consult with a Belton Criminal Defense Lawyer

If you voluntarily submitted to a breath or blood test or the police forced you to take the test against your will, our criminal defense lawyer is here to help. We will evaluate the circumstances surrounding your arrest to identify whether or not a constitutional violation has occurred.

If the police violated your constitutional rights at the time of the DWI stop or arrest, we could challenge the validity of your arrest to get the DWI charges dismissed. We will also investigate how your breath or blood samples were collected, handled, and analyzed to identify potential errors.

Our criminal defense attorney at The Law Office of Brett H. Pritchard has successfully defended DWI cases in the state of Texas for over 20 years. Schedule a free consultation with our knowledgeable DWI defense attorney by calling 254-501-4040 or completing our contact form.


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