A Texas DWI Lawyer & Defense Attorney Explains

Many people understand that drinking and driving penalties are harsh in Texas, but fewer people are aware of how best to avoid a DWI charge here.

One of the biggest things you can do to help save yourself from being convicted of driving under the influence (DUI) or driving while intoxicated (DWI) is to refuse to take a breathalyzer test.

In many circumstances, when you refuse a Texas breathalyzer request from a police officer, you are technically breaking an administrative law. However, the penalty for refusing to take a BAC breath test is a lot less burdensome than a DWI conviction.

There's more to declining a breathalyzer than just saying "no." After years of defending Texans charged with DWIs, our law firm has a deep understanding of what it means to refuse a BAC breath test, the penalties, and why someone might want to refuse a breathalyzer. The following are answers to common breathalyzer test questions.

In Texas, Do You Have To Take a Breathalyzer Test?

Like many states, Texas has the rule of "implied consent." Basically, when you got your Texas driver's license you agreed, by implication, that you will submit to a roadside or on-the-spot BAC (blood alcohol content) breathalyzer test if legally requested by law enforcement.

So, yes, the law does say you have to take a breathalyzer. However, many people choose to ignore this law. When you say "no" to a BAC breath test you are delaying BAC analysis and may avoid forced blood testing, too.

Why Say ‘No’ to a Breath Test?

Many people who understand their rights and freedoms choose to decline roadside breathalyzer tests requested under implied consent. This is because they would rather take the penalty than create potentially damning evidence for the police to use against them. Breathalyzer results are weak and not trustworthy. Still, a prosecutor may be able to convince a jury to take such flimsy data seriously.

In Texas, the penalty for refusing a roadside breathalyzer is administrative - an automatic 180-day driver's license suspension (first offense). The penalty that comes with a DWI conviction is criminal and far greater (suspension, fines, imprisonment, etc.). Also, you can appeal an implied consent suspension.

If You Refuse To Take a Breathalyzer – What Happens Next?

As we explained earlier, many states have implied consent. Texas takes this a step further with its "No Refusal" program. In most communities, No Refusal is a limited-time campaign in which police have extra muscle to force you to take a BAC test.

No Refusal gives police quick access to court warrants, forcing DWI suspects to take a blood BAC test if they refuse a breath one.

An officer may apply for a search warrant for a suspect's blood even when there isn't a running No Refusal campaign. However, the process is a lot faster to obtain under No Refusal.

Why not just take the breathalyzer?

Because No Refusal testing is not the same as a guaranteed BAC test.

Police do have faster access to blood search warrants through No Refusal. But judges don't just rubber-stamp these requests. The process for getting a No Refusal warrant can be long and complicated. And there is no certainty a judge will approve it. Even if an officer successfully obtains a warrant, there may not be a nearby facility available to make the blood draw.

Usually, No Refusal campaigns run for a weekend or a week or two around the holidays. Typically, campaign dates are announced by participating police departments and county district attorneys.

Some communities, though, have extended No Refusal programs. In Austin, for example, they are running a year-long NR campaign, October 2021 through September 2022.  In Conroe and Montgomery County, the district attorney teamed up with local police to run a No Refusal from Dec. 17, 2021, through Jan. 1, 2022.

Consult With a Texas DWI Defense Attorney for Free

Texas remains among the states with the harshest DWI penalties. If you are facing charges in Montgomery County or suspect they will soon be filed, contact us for a free case consultation.

Do not discuss your case with anyone else or accept a plea deal before consulting with an attorney. Amanda Webb is a former assistant district attorney. She knows how the system works and how to make it work for you.

Do not wait. Appeals and legal documents must be filed on time to meet strict deadlines. Contact our law firm right now to schedule a free case consultation.