Refusing a DWI Test and Implied Consent in Texas

Driving while intoxicated (DWI) occurs when an individual operates a motor vehicle while they are legally intoxicated. In general, an individual is considered legally drunk if their blood alcohol content (BAC) is at or above 0.08%.

It is important to note that the level that constitutes being legally drunk may vary from state to state. Driving while intoxicated, or DWI, may also be referred to as DUI or driving under the influence.

Every state has its own laws that govern driving while intoxicated, although it is a crime in every state. In Texas, the driving while intoxicated laws prohibit drivers from operating motor vehicles in public areas when their blood-alcohol content level is at 0.08% or higher.

In Texas, a first DUI offense is a Class B misdemeanor that is punishable by:

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

An individual’s second DUI offense will be a Class A misdemeanor that is punishable by:

• A county jail sentence of one year to thirty months;
• Criminal fines of up to $4,000;
• Both criminal fines and time in a county jail.

It is important to note that if the defendant’s BAC was 0.15% or higher, a Class A misdemeanor crime may be punished by additional jail time. A third DUI in Texas is classified as a third-degree felony and is punishable by:

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

Under Texas laws, an individual who has been convicted of their first DUI will be required to serve a mandatory county jail sentence of three days. This sentence may be extended to six days if the defendant was stopped with an open container of alcohol in their vehicle.

There is also a new law in Texas, Bentley’s law, effective September 1, 2023, that requires a convicted drunk driver to pay up to 18 years of child support if they kill a parent. Another related charge to DUI may be public intoxication.

Under Texas public intoxication laws, an individual is guilty if they appear in public while being intoxicated. The level of intoxication must be so that the individual endangers themselves or the individuals around them.

In Texas, public intoxication is a Class C misdemeanor that is punishable by a maximum fine of $500. For information on the charges and punishments an individual may face related to a DUI, they should consult with a local lawyer in Texas.

How Is Intoxication Determined?

In order for a law enforcement officer to pull over an individual they suspect of drunk driving, they must have probable cause. One example of this would be if an individual is speeding or swerving.

Once the driver has been pulled over, the officer may request that they step out of their vehicle and submit to one of the following tests during a DWI stop:

• 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 types of tests require a medical professional to conduct and produce lab results;
  • Law enforcement needs to obtain a warrant before these tests are 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 driver’s balance and agility;
  • The most common examples of field sobriety tests require an individual to touch their finger to their nose, stand on one foot while counting, or walk a straight line with one foot in front of the other.

Should the driver fail any of the field sobriety tests, the officer has grounds to ticket and arrest them for drunk driving. In addition, if a driver refuses to perform a test at the scene, the officer may still arrest them if the driver is suspected of driving drunk.

The smell of alcohol coming from the driver’s breath or an open container in the vehicle may be used as evidence to arrest the driver for drunk driving, even if the containers are empty. It is important for drivers to consider the pros and cons of DUI tests.

Can I Refuse a Breathalyzer or BAC Test?

In general, in Texas, an individual is not required to submit to chemical testing for driving while intoxicated. Once an individual has been arrested and charged with a DWI, they are within their legal rights to refuse to submit to a breath or blood alcohol content test.

However, it is important to note that refusing to submit to chemical testing may result in serious consequences under the implied consent laws in Texas. Under these laws, if an individual is arrested for an offense based on acts that are alleged to have been committed while they were operating a motor vehicle in a public place, it is as though they have consented to submit to testing.

In other words, any individual who drives on public roads in Texas has agreed to submit to chemical testing.

What Are the Penalties for Refusing to Take a Breath or Blood Test?

If a driver is lawfully arrested for a DWI and refuses to submit to a BAC test, they may face an administrative penalty as well as the standard penalties for DWI.

Even if the individual is acquitted of the DWI charges, the administrative penalties may still apply. Typically, a first offense is punished by a driver’s license suspension of 180 days.

If an individual commits a second offense within ten years, they may face driver’s license suspension for up to two years. If an individual’s license is administratively suspended based on the refusal to take a BAC test, they may apply for an occupational license.

This license permits the individual to drive to and from work as well as to perform essential household duties. However, an individual may be able to avoid a DWI conviction by refusing to submit to testing.

Because the administrative penalties in Texas are much less severe than the penalties for a DWI conviction, this may be appealing. It is important to note, however, that if an individual is found guilty of DWI after refusing to submit to a BAC test, they will face additional administrative penalties in addition to the standard penalties for DWI.

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

If you have been charged with driving while intoxicated in Texas and they refused to submit to a chemical BAC test, you should consult with a Texas DUI/DWI lawyer as soon as possible. Your lawyer can advise you of the laws that apply in Texas and how they will affect your case.

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