Posted on 12/5/22

Many of us attend holiday parties and functions throughout November and December. While driving to or from work or an event, you may look into your rear-view mirror and see a flashing light. You pull over and see a police officer approaching your window. The officer says that he suspects you of driving while intoxicated (DWI) and asks you to take an alcohol breath test, also called a breathalyzer test. Are you legally required to comply and take the breathalyzer test? What happens if you refuse to take a breathalyzer test in Texas?

The Difference Between a Traffic Stop and a Drunk Driving Arrest

Determining whether you are required to take a breathalyzer test depends on whether you have been arrested. Breathalyzer tests are frequently used during traffic stops to provide police officers with the probable cause of drunk driving so they can make a lawful arrest. There is a difference between a breath test police officers carry with them during traffic stops, which is a portable test, add a breathalyzer test taken at the police station. 

Results from the portable breathalyzer test on the side of the road are not admissible as evidence against the driver in a DWI case. However, they can be used to provide evidence of probable cause to arrest a driver and take him or her into custody. At the police station, drivers are asked to take a breathalyzer test on a more accurate, larger device called an evidentiary breath test machine. The results from this test are admissible in court.

The Consequences of Refusing to Take a Breathalyzer Test

Under Texas law, a driver is considered intoxicated when his or her blood alcohol concentration (BAC) is .08% or higher. Most DWI convictions are based on evidence from the breathalyzer test. As a driver in Texas, it is important for you to know that you do not have to take a breathalyzer test. You do have the right to refuse the test. Refusing a roadside rest lesser test when pulled over during a traffic stop will not always prevent you from being arrested for a DWI. However, you will not be charged with a crime for refusing a test when you have been pulled over on the roadside. 

The Civil Penalties for Refusing a Breathalyzer Test

Texas has an implied consent law stating that drivers give implied consent to take breathalyzer tests under certain circumstances. Refusing a breathalyzer test will have civil consequences even though you cannot be charged with a crime or arrested just because you refused to take the test. Refusing to submit to an evidentiary breath test can result in your driver’s license being suspended for 180 days for a first-time offense and two years for a second offense. Once your license is suspended, you only have 15 days to request a formal hearing with the Texas Department of Public Safety (DPS). During that hearing, you can present evidence on your behalf to challenge the driver’s license suspension.

Contact a Dallas/Ft. Worth Criminal Defense Attorney 

If you have been arrested for a DWI in Texas, you will benefit from having a skilled attorney. Contact Abel Law Firm today to schedule a free case evaluation and learn more about your rights.

Flower Mound Office

Phone: 972.584.7837

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