One of the most common questions after a DWI arrest in Central Texas is whether the driver should have taken the breath test. There is no single right answer. Refusing has real consequences, and so does taking the test. Here is what Texas law says about each.
What “implied consent” means
Under Chapter 724 of the Texas Transportation Code, anyone who drives on a public road in Texas is considered to have consented to give a breath or blood sample if they are lawfully arrested for DWI. This is called implied consent.
Implied consent does not mean the officer can physically force a breath test. A driver can still refuse. But refusing triggers penalties of its own, and officers often have another way to get the evidence.
Consequences of refusing
- License suspension: 180 days for a first refusal, and up to 2 years if the driver has a prior alcohol- or drug-related enforcement contact within the past 10 years.
- Use at trial: prosecutors can tell the jury that the driver refused, and argue it shows the driver believed they would fail.
- A blood warrant: officers can ask a judge for a search warrant to draw blood. In Travis, Williamson and Hays counties, this can happen quickly.
Consequences of taking the test and failing
- License suspension: generally 90 days for a first offense when the result is 0.08 or higher, longer with prior contacts.
- Evidence: the result becomes central evidence in the criminal case.
In both situations, the driver generally has 15 days from receiving notice to request an ALR hearing to challenge the suspension.
No-refusal weekends
Around holidays and major events in Austin, such as New Year’s Eve, Memorial Day, Fourth of July, Labor Day, SXSW and ACL, local agencies often announce “no-refusal” periods. During these periods, prosecutors and judges are available around the clock to review and sign blood search warrants within minutes. A driver who refuses a breath test will very likely have their blood drawn under a warrant.
Breath and blood tests are not automatically accurate
Whether a driver refused or took the test, the evidence can be challenged:
- Breath machines must be properly maintained and calibrated, and operated by a certified operator who follows the required observation period.
- Blood samples must be drawn by a qualified person, stored correctly, and tested by a lab that follows proper procedures. Errors in the chain of custody, storage or testing can make results unreliable.
- Warrants must be supported by enough facts. A weak affidavit can be challenged.
The bottom line
The choice to refuse or take a test is made in a stressful moment, often late at night. Either way, the case is far from over. The stop, the officer’s observations, the testing process and the paperwork all deserve a careful review.
Talk to an Austin DWI lawyer
Call the Law Office of Florencia Rueda at 512-415-7648 for a free, confidential consultation. Se habla español.
This article is general information, not legal advice. Every case is different.