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What Happens if You Refuse a Breathalyzer in Texas?

Man in car is worried as he looks back and sees police lights flashing

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.

Your Rights During a DWI Traffic Stop in Texas

Driver being subjected to a breathalyzer test to see if he's driving under the influence of alcohol.

A Texas DWI Lawyer Reveals What To Know

Many people have had this experience: You're driving home after a party, restaurant, or celebration and suddenly you see the blue lights of a police cruiser flashing in your rearview mirror. You pull over hoping they pass by, but instead, the officer pulls up behind you, gets out of the car, and says, "Do you know why I stopped you?"

All of a sudden, those couple of drinks you had earlier in the night start to weigh on your mind and you start to worry if you're going to be charged with drunk driving.

What do you do?

When getting pulled over by the police, it is important that you are aware of your legal rights ahead of time. This will help prevent you from accidentally incriminating yourself or otherwise providing evidence to support charges against you.

Pulled Over For DWI In Texas

What information do I have to give to police during a DWI stop?

You don't have to tell the police anything beyond your name and address. Be polite, provide documents they may request like your license registration, but do not answer questions. If the officer asks you how much you've had to drink or why they pulled you over, you have the right to remain silent and have a lawyer present with you during questioning.

What if I'm asked to take a field sobriety test?

If the officer asks you to step out of your vehicle, ask if you are free to leave. If the answer is yes, then leave. If the answer is no, ask to speak with an attorney before saying or doing anything else. Do not agree to perform a roadside test or have your eyes tested. These are voluntary.

Should I take a breathalyzer test?

No. Do not blow into a breathalyzer or otherwise take a breath test to measure BAC (blood alcohol content) levels. In Texas, refusing to take a breathalyzer will almost certainly get your license suspended. However, many people prefer this over providing information to the police that will be used against them. Breathalyzer tests are unreliable, but many juries still find them convincing. It is best to avoid them.

If I don't take any sobriety tests, can I still be charged with DWI?

Yes. The police can press driving while impaired charges against you even if you didn't drink alcohol. Impairment counts as anything that alters your state of mind to the point where you can no longer safely control your vehicle. A person can be impaired by alcohol as well as drugs, fatigue, illness, in addition to other circumstances. If a police officer believes you cannot safely operate your car, truck, or motorcycle, they can usually arrest you on an impairment charge.

So, stand up straight and be alert. The police officer is looking for any signs of impairment that they can use against you to build a DWI charge. Simply leaning against your car could be interpreted as the act of someone who needs help balancing.

Talk to a DWI Defense Attorney Today

If you're in the Montgomery County area and you're facing DWI or other impairment-related charges, contact Amanda Webb - DWI Lawyer for a free case evaluation. We are located in Conroe and can be contacted 24/7 by phone, email, or online chat. Protect yourself and your rights. Contact us today to find out more about how we can help you.

What Happens if You Get Convicted of a DWI in Texas?

A young woman, being stopped by police at night for a traffic violation.

A Texas DWI lawyer & defense attorney explains

Texas has some of the stiffest DWI penalties in the U.S.

With so much at stake, we are often asked "What happens if I get convicted of DWI?"

Driving while intoxicated (DWI) carries many penalties in Texas, potentially including thousands of dollars in fines, imprisonment, and loss of driving privileges. It often also means a period of DWI probation. In Texas, probation is also known as "community supervision."

A Texas DWI conviction can be very expensive, too. Between bail, legal fees, court appearances, court-ordered classes, car insurance hikes, and other expenses, the cost of a single DWI can be $17,000 or more, according to a study done back in 2010. The cost of a single DWI has increased significantly since then. That's why if you're facing charges, you should consult with an experienced DWI lawyer who knows how to craft a strong defense.

DWI penalties in Texas

What happens if you get convicted of a DWI largely depends on your age, blood alcohol content (BAC) level, and driving history. Texas has separate charges for underage drivers and adults who get behind the wheel too drunk to drive. The state also gives out additional penalties to people who were allegedly driving with a "high" BAC defined as anything 0.15 or more (0.08 is the legal BAC limit for operating a passenger vehicle).

Most states wipe a DWI from your record after years of good behavior. Some require as many as 10 years of good driving. Texas, however, never wipes a DWI from your record.

Texas has specific penalties for first, second, third, and subsequent DWI convictions. Your first offense may lead to up to 1 year of imprisonment. A third or subsequent conviction is a felony and can get you a sentence of up to 10 years imprisonment and $10,000 in fines. If bodily harm is done, a judge can sentence you to imprisonment for up to 20 years.

For a first offense, people lose their driving privileges for 90 days unless an exemption can be negotiated.

DWI probation

Most DWI convictions include a period of community supervision (probation). This can be expensive. Community supervision often includes paying for classes, additional fees, and rehab. Attending driver education classes, therapy sessions, and doing community service are all typically expected to be done during your license suspension, which can be a hassle as well as expensive.

In general, terms of DWI probation include:

  • No less than 72 hours of continuous confinement in a county jail all the way up to no less than 120 days of confinement for repeat offenders
  • Check-ins with a supervisory officer
  • Pay for all or part of rehabilitation services for drug or alcohol abuse
  • Complete drug and/or alcohol abuse programs
  • Submit to a court-ordered evaluation
  • Completion of a driver education program before the 181st day after the start of community supervision

In addition to terms of your sentence and probation, Texas will most likely require you to pay a state fee of $3,000 to $6,000.

Facing charges in Texas? Protect your rights and call a DWI attorney

In Texas, a DWI conviction can have serious and long-lasting repercussions. Your auto insurance provider may drop you after a DWI. You may be forced to purchase insurance on the secondary market at an average increase of 44% of your current rate. A DWI conviction can make it difficult to get a good job, professional licenses, housing, loans, and education.

If you have been charged with drunk driving in Texas or think charges are coming, schedule a free case review with an experienced DWI defense attorney.

Attorney Amanda Webb has a reputation for successfully fighting back against DWI charges. She has a deep understanding of the law and how prosecutors think. And she knows what it takes to get the best possible outcome in your case. To find out how we can help you, contact us today.

State Auditor Calls For Dismissal Of 'Invalid' DUI Evidence

a man in a suit blowing into a breathalyzer while sitting down at a desk with a police officer

A state audit of the Attorney General's Office is raising questions about whether invalid equipment was used in North Dakota DWI breathalyzer tests from 2018 to 2020.

Almost three dozen expired or otherwise unapproved gas canisters were allegedly used in DWI (driving while intoxicated) breathalyzer tests during those two years, according to the results of a routine investigation by the State Auditor. DWI breathalyzer tests attempt to measure a person's BAC (blood alcohol content) level by analyzing exhaled particles. The legal limit for DWI, also known as DUI or driving under the influence, is 0.08% BAC.

The discovery invalidates 34 tests conducted using degraded equipment and casts doubt on the accuracy of thousands of other DUI tests done in the state as well, the auditor says. According to the audit, this corrupted evidence should be dismissed from use in court. 

Can't trust a breathalyzer

If reading this blog is giving you deja vu, that's understandable.

Investigations that highlight failures of the DUI breathalyzer test are becoming routine. The breathalyzer's reputation is getting the criticism it should have gotten a long time ago. Within the last year or so, a handful of scandals have seriously discredited the flawed equipment. Many district attorney's offices don't even bother to submit breathalyzer results as evidence in DUI trials. In the Midwest, there is a state police force alleging poor machine maintenance may have skewed results.

Attorney Amanda Webb pushes back against prosecutors who want you to think their DWI case against you is strong. Our law firm has built a reputation in Conroe and the greater Houston area for exposing shoddy evidence and discrediting charges. As a former assistant district attorney, Amanda Webb is deeply familiar with the state’s criminal justice system. She uses this knowledge to fight for people facing DWI charges in Texas. Our legal team doesn't accept a prosecutor's narrative or police report as facts. We dig deep to find out exactly what happened so that we can fight for the best possible outcome of your case. 

AG denies audit

Despite its many shortcomings, some law enforcement and justice department officials still have faith in breathalyzers. The North Dakota AG, for one, refuses to believe the state audit.

The attorney general there says he does not accept the report. He says that there are measures in place to prevent the use of expired or otherwise unreliable equipment during DUI tests, according to local media. He did not explain how the auditor found 34 instances across 11 jurisdictions where expired or otherwise defective gas canisters were used in breathalyzer tests.

Auditors reviewed more than 8,900 tests analyzed by the State Crime Laboratory from 2018 to 020. In breath tests, gas standard canisters work as a check to make sure that the equipment is working correctly and is properly calibrated. If the machine isn't set up correctly in the first place, the results cannot be trusted.

To prevent the further use of faulty equipment in DUI tests, the auditor recommends that the lab have someone inspect and ensure gas canisters are "approved and replaced" before the expiration dates.

The attorney general says that there is no need for action: The state is transitioning away from using the machines that utilized the invalid canisters creating inaccurate results. The Intoxilyzer 8000 style breathalyzers are being replaced with Intoxilyzer 9000s. There are plans to replace around 120 machines over the next two years. The 9000 model has a feature the manufacturer says will stop it from running a test if the gas canister is not valid.

The status of the 34 cases involving invalid tests is not clear. Nor is it clear how the audit will impact the thousands of other tests conducted from 2018 to 2020.

Breathalyzer scandals

Even without the discovery of faulty gas canisters, there are many ways a breathalyzer DUI test can be corrupted. Among the things that can influence the results of a breathalyzer are improper sample handling, human error, inaccurate interpretation of results, and defective equipment. Recent news that further discredits breathalyzer results includes:

  • Poor test-result quality leads to the possible reevaluation of more than 25,000 past DUI convictions in Massachusetts. Almost every district attorney's office no longer submits breathalyzer results as DUI trial evidence. New Jersey is in a similar situation.
  • The Michigan State Police allege the company hired to calibrate their breathalyzer equipment produced false records.
  • Recalled test tubes were used by law enforcement nationwide in possibly thousands of breathalyzer tests to support DUI charges. The lab equipment was recalled because some of the tubes in a batch of more than 100,000 did not contain a chemical necessary to properly preserve the sample for testing.
  • In Georgia, local and state law enforcement are transitioning away from breath BAC tests in favor of blood analysis. The state is using grants to train officers to properly draw blood and purchase necessary equipment. 

Don't take chances with your future

In Texas, the breathalyzer still has a large role in DWI arrests and charges.

Some prosecutors still like to hold up stationary breathalyzer test results as bulletproof evidence. Police use roadside breath tests to help establish probable cause. If you are facing DWI charges in Conroe or the greater Houston area, you need a criminal defense attorney who understands what it takes to get charges reduced or dropped.

Our law firm is aggressive about defending you when your future is on the line. We understand how damaging a driving while intoxicated charge can be to the life you have built. The harsh penalties available to judges include imprisonment, large fines, community service, and loss of your driver’s license, among other punishments.

Don't delay. Get an experienced Texas DWI lawyer and defense attorney by your side. Contact us today to schedule a free case review.

Should DWI Blood Tests Replace the Breathalyzer?

Driver being subject to test for alcohol content with use of breathalyzer

A Texas DWI attorney reveals everything you need to know

With faith in breathalyzer results plummeting, law enforcement is seeking to find new forms of evidence to present at DWI trials.

The formerly "bulletproof" breathalyzer results being used as driving while intoxicated (DWI) evidence has a lot of dents in its armor. The reputation of breathalyzer results is so poor that in some states, prosecutors won't even admit breath tests into evidence.

More and more, police departments are analyzing a drunk driving suspect's blood instead of breath to determine BAC (blood alcohol content) levels. The legal limit is 0.08 BAC. Some states are investing more in blood draws than others. In Georgia, the state recently won a grant to purchase equipment and train almost 100 state and local police officers on how to draw blood for BAC analysis.

Texas DWI and "No Refusal"

In Texas, the breathalyzer is still a law enforcement tool. Despite the breathalyzer's proven track record of delivering bogus results, Texas counties and communities run "No Refusal" campaigns. These temporary programs give police a little extra muscle to force people to submit to screenings.

"No Refusal" is a strategy to crack down on drunk driving by stepping up DWI enforcement, BAC testing, and arrests. The program creates special circumstances that allow for speedy access to DWI-related court warrants. If someone refuses to submit to a breath or blood BAC test during a "No Refusal" campaign, they can be forced to take one by a judge. Most "No Refusal" campaigns in Texas are held around the holidays, but Tarrant County has forced testing all year.

BAC test shortfalls

The justice system is beginning to admit breathalyzer shortfalls — and that's great. Their shift to blood tests, however, is not. Blood tests are more invasive and can scan for more than just alcohol. A blood draw done to support a driving under the influence (DUI) charge may be able to identify drugs and polysubstances, as well.

While blood tests can produce more information than those that process breath, they are open to many of the same outside factors that could destroy the accuracy of the test results.

In Michigan, the State Police, and subsequently many local police departments, stopped using breathalyzers over allegations that the equipment wasn't properly maintained. Police are accusing the company hired to calibrate the machines of providing them with fraudulent work documents. Just as breath test equipment can be in poor condition, so too can blood testing devices.

This is just one example of how blood and breath test results can be skewed.

Challenging DWI blood test results

There are a lot of ways DWI blood tests can be wrong. Drawing blood is a multi-step process that involves various equipment and many opportunities to introduce errors. Outside factors that could make DWI blood test results look worse include:

  • Improper sample handling that leads to contamination
  • Delay in time of draw and actual analysis
  • Human error
  • Defective equipment
  • Improper sample preservation that leads to fermentation
  • Inaccurate interpretation of results

We have already seen examples of how easy it is to throw off a blood test. Thousands of DWI convictions were thrown into doubt when it was discovered that police departments across the U.S. were using blood sample vials that had been recalled. Hundreds of thousands of test tubes were recalled in 2019 because some vials in the batch did not contain the chemicals necessary to preserve the samples. While many police departments were notified about the recall and returned the vials, other police departments didn't get the memo.

Legal help is available when you've been charged with DWI

At The Webb Law Firm, P.C. we have years of experience exposing unreliable BAC results. We break down seemingly "solid" evidence and reveal prosecutor tricks to get desirable outcomes for our clients. Texas hands down harsh verdicts for DWI convictions. If you are facing DWI charges or suspect they are forthcoming, contact us today for a free case evaluation with an experienced Texas DWI defense lawyer to find out how we can help you.

We proudly serve clients in the greater Houston area, Conroe, The Woodlands, Waller, and all of Montgomery County. We are ready to hear from you 24/7.