Posted on 7/4/22

If you have been pulled over for driving while intoxicated (DWI) in Texas, you may wonder whether you must submit to a breathalyzer test. Under Texas law, you can refuse to take a breathalyzer or blood alcohol test. However, you may face penalties for refusing to take the test. In some cases, the police officer may be able to obtain a sample from you, even when you refuse to take the test.

Texas Implied Consent Law

When you obtain a driver’s license in Texas, you automatically consent to provide a blood or breath sample if you are arrested for a DWI. Texas has an implied consent law that only kicks in when you have been lawfully arrested for a DWI. In other words, if the arrest is unlawful or for something different from a DWI, the implied consent law does not require you to submit a sample. Before a police officer has arrested you, you still have the right to legally refuse to submit to blood alcohol testing, including breathalyzer, blood testing, and field sobriety testing, without repercussions.

After you have been arrested, you can still refuse to submit to chemical testing. In most cases, police officers must respect your decision to refuse to take the test. However, you will still face penalties for refusing to be tested.

When Can the Police Take a Sample Without My Consent?

In limited circumstances, police officers can force a person to provide a breath or blood sample without consent. They can do so when the police officer has a reason to believe the driver was operating a motor vehicle in a public place while legally intoxicated due to drugs, alcohol, or another substance, and one or more of the following circumstances apply:

  • The driver has a previous conviction for a DWI with a minor age 14 or younger in the vehicle

  • The driver had a DWI accident in which someone needed transportation to the hospital, sustained a serious bodily injury, or died

  • The driver has two previous DWI convictions

  • The driver has one previous intoxication assault or intoxication manslaughter conviction 

Penalties for Refusing a Blood or Alcohol Test

Under Texas’ implied consent law, drivers who refuse a breathalyzer test or blood test after being arrested for a DWI face a driver’s license suspension. The length of the suspension depends on multiple factors, including whether or not this is your first time refusing or feeling a blood or breath alcohol test. If this is your first refusal, you could lose your driver’s license for up to 180 days. If you have a prior DWI conviction or refusal, your license can be suspended for two years. 

You will need to attend an Administrative License Revocation (ALR) hearing in addition to any criminal court proceedings. You must contact the Texas Department of Public Safety within 15 days of the arrest to request your hearing. Do not fail to contact them, or you will risk an automatic suspension of your license without the opportunity to defend yourself.

Contact a Dallas/Ft. Worth DWI Attorney

If you have been arrested for a DWI in Texas, we recommend contacting an attorney as soon as possible. Contact Abel Law Firm today to schedule your free initial consultation.

Flower Mound Office

Phone: 972.584.7837

Denton Office