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Texas Implied Consent Laws: Refusing a Breathalyzer Test

Criminal Law Blog by The Law Office of Greg Tsioros

Texas Implied Consent Laws: Refusing a Breathalyzer Test

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Can You Refuse A Breathalyzer Test in Texas?

If you have ever seen a person performing a field sobriety test for a police officer on the side of the highway, you have likely witnessed an event that included a Breathalyzer test. Breathalyzers, and similar devices, are used to examine the alcohol content of a person’s breath sample to determine their level of intoxication. If these devices are used properly by a trained operator, they can provide very accurate information regarding the subject’s blood-alcohol content.

Many people believe that if they are pulled over on suspicion of DWI, they can simply refuse to provide a sample of their breath. However, this is a decision that shouldn’t be taken lightly. You should be familiar with the facts on Texas’ implied consent law before you make any decisions on the matter.

What Is Implied Consent?

Did you know that if you are operating a vehicle in a public place or if you are operating a watercraft and a police officer suspects you of being intoxicated, you may already have given consent to an alcohol test? Under Chapter 724 of the Texas Transportation Code, you may be required to give a blood, breath or urine sample if you are suspected of driving while intoxicated.

This legal provision is known as “implied consent“. This may sound unfair or even unjust but it is a legal fact in the state of Texas. Essentially, when you operate a vehicle or watercraft in a public place, you are expected to exercise a certain “duty of care“. This means that you are expected to behave in a way that does not endanger yourself or others in the area. Therefore, a police officer has the legal right to request that you submit to a test if you:

  • Are pulled over on suspicion of drunk driving
  • Are erratically operating a watercraft on a holiday weekend
  • Are seen pulling out of a bar after remaining inside for several hours

If an officer suspects that you might be over the limit, they can ask you to submit to a test of their choosing.

The Issue of Refusal

Although Texas does have an implied consent law, the fact remains that some people will still refuse to submit to an alcohol test. Of course, if a person refuses, an officer doesn’t have the right to hold them down and force them to take the test. A person can certainly sit down on the curb and simply refuse to participate in any tests. However, this can have serious legal consequences.

When you are asked to submit to a test, an officer is required to inform you that a refusal to take the test will result in an automatic suspension of your driver’s license for 180 days. If you refuse, the officer will have you sign a document which states that you were fully informed of the consequences of refusal and you still chose to refuse the test.

At that time, you may still be arrested and taken to jail on suspicion of drunk driving. Your license can be confiscated and you can be issued a temporary driving permit to use when you leave jail.

I Refused A Test, Now What?

If you refuse an alcohol test in Texas, your license can immediately be confiscated by the officer on the scene. However, after this happens, you will have 15 days to schedule a hearing on the issue. This is known as an Administrative License Revocation, or ALR, hearing.

The purpose of this hearing is to allow you to claim that your license should not have been suspended. For example, you could claim that the officer had no reasonable suspicion to stop you for suspected intoxication while driving. If this hearing goes in your favor, your license may be returned to you. However, if the officer’s reasonable suspicion is upheld, your suspension can remain in place for the full 180 days.

Failing The Test

If you choose to submit to the alcohol test, you will be asked to provide a sample of your breath, blood or urine. In most cases, you will be asked to blow into a machine known as a Breathalyzer. This device can measure the concentration of alcohol in your system to determine if it is over the legal limit of .08.

If you fail this test by providing a sample that is over the legal limit, your license will be automatically suspended for 90 days. However, you will still have the opportunity to arrange an ALR hearing.

Legal Assistance

If your license has been suspended in Texas for either refusing or failing a Breathalyzer test, legal assistance can be invaluable.

For example, a defense attorney may help you argue that your stop by the officer was unwarranted and that your license shouldn’t be revoked.

Have you been charged for driving while intoxicated? Have a pending ALR hearing? Attorney Greg Tsioros can help you. Contact his office today at 832-752-5972.

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