Driving while intoxicated (“DWI”) refers to when a person operates a motor vehicle while legally drunk. Generally speaking, a person would be considered legally drunk if their blood alcohol content level meets or exceeds 0.08%. It is important to note that the exact BAC level that would constitute being legally drunk can vary from state to state.

Driving while intoxicated, or DWI, can also be referred to as DUI, or driving under the influence. Each state has its own laws regarding driving while intoxicated, although it is considered to be a crime in every state. In Texas specifically, the driving while intoxicated law prohibits a driver from operating a motor vehicle in a public area when their blood-alcohol content (“BAC”) level is at 0.08% or higher.

A first-time DUI offense in Texas is considered to be a Class B misdemeanor. This has the possible criminal sentence of:

  • Up to 180 days spent in county jail;
  • A fine of up to $2,000; or
  • Both county jail time and a fine.

A second DUI offense is categorized as a Class A misdemeanor. This conviction can result in:

  • A county jail sentence ranging from one year to thirty months;
  • A criminal fine of up to $4,000; or
  • Both a criminal fine and time spent in a county jail.

It is important to note that if a person’s BAC is 0.15% or higher, the Class A misdemeanor crime can be punished by additional jail time.

A third DUI offense in Texas is considered to be a third degree felony, which is punishable by:

  • Two to ten years in a federal prison facility;
  • A criminal fine of up to $10,000; or
  • Both a prison sentence and a fine.

According to Texas law, a person who has been convicted of their first DWI is required to serve a mandatory county jail sentence of three days. This sentence could be extended to six days if the driver was stopped with an open container of alcohol in their vehicle.

How Is Intoxication Determined?

In order to pull over a person that they suspect is drunk driving, a police officer must have probable cause. An example of this would be when the officer sees that a person is speeding or swerving all over the road. Another example would be if the officer observes alcohol and/or drug paraphernalia in the vehicle. These are just two examples of what could constitute probable cause, as there are many different circumstances.

Once a driver has been pulled over by an officer, the officer will generally request that the driver steps out of their vehicle and submit to one of the following tests in order to determine whether the driver is sober:

  • Breathalyzer: This handheld device measures the concentration of alcohol in a person’s system by having them blow into the device. A breathalyzer test can be administered at either the scene where the car was stopped, or at a police station;
  • Blood or Urine Testing: These tests require a medical professional to conduct the testing and produce lab results. Additionally, the police will first need to obtain a warrant allowing these tests to be administered. As such, a blood or urine test is not generally administered at the scene of the traffic stop; and
  • Field Sobriety Tests: These tests are commonly administered at the scene, and include a variety of different physical activities that are designed to test a person’s balance and agility. The most common examples of field sobriety tests include touching a finger to your nose, reciting the alphabet, or standing on one foot while counting.

Should the driver fail any of the administered tests, the officer has grounds to ticket and arrest them for drunk driving. Additionally, if the driver refuses to perform any test that can be administered on site, the officer may still arrest them if they suspect that the driver has been driving drunk. The smell of alcohol coming from the driver’s breath, or from open containers in the vehicle, can be used as evidence that an officer may exploit to arrest the driver for drunk driving. This remains true even if the containers are empty.

In Texas, Am I Required to Take a Chemical Test For a DWI? What Are The Penalties For Refusing to Take a Breath or Blood Test?

Generally speaking, no, you are not required to submit to chemical testing for driving while intoxicated in the state of Texas. Once you have been arrested and charged with a DWI, drivers are within their legal rights to refuse to submit to a breath or blood alcohol content (“BAC”) test.

However, it is important to note that refusing to submit to chemical testing can result in serious consequences under Texas’ implied consent laws. According to these laws, if a person is arrested for an offense due to acts that are alleged to have been committed while they were operating a motor vehicle in a public place, it is as if they have consented to submit to testing. To put it more simply, any person driving on public roads in Texas has agreed to chemical testing.

If a driver is lawfully arrested for a DWI in Texas, and they refuse to submit to a BAC test, they will face an administrative penalty in addition to the previously discussed standard penalties for DWI. Even if they are acquitted of those DWI charges, these administrative penalties still apply.

The first offense is generally punished by driver’s license suspension for 180 days. The second offense to occur within ten years of the DWI arrest could result in driver’s license suspension for up to two years. If a person’s license is administratively suspended due to refusing to take a BAC test, they may apply for an occupational license. This license permits them to drive to and from work, and to perform essential household duties.

A person who refuses to submit to testing subjects themselves to stiff penalties. However, by refusing to take the test, they may be able to avoid a DWI conviction. Because the administrative penalty for BAC test refusals is much less severe than the penalty for DWI convictions, this may be appealing. However, it is imperative to note that if someone is found guilty of DWI even after refusing to submit to a BAC test, they will face those additional administrative penalties in addition to the standard DWI penalties.

Do I Need an Attorney For Refusing a DWI Test in Texas?

If you are being accused of driving while intoxicated in Texas, and have refused to submit to a chemical blood alcohol level test, you should consult with a Texas DUI/DWI attorney as soon as possible.

Because state laws vary greatly in terms of driving while intoxicated and implied consent, it is imperative that you work with an experienced and local DUI/DWI attorney. They will be best suited to helping you understand your state’s specific laws, and how they will affect your legal options moving forward.

Your attorney can determine whether any legal defenses are available to you based on the specifics of your case, and will protect your rights. Additionally, an attorney will also be able to represent you at any necessary court appearances. Finally, an experienced attorney may be able to work towards a reduced sentence time, or have all charges dismissed against you.