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DWI Defense

What You Need to Know about Refusing a Breathalyzer Test

There are several things about DWI stops that people don’t know or don’t understand. One of the more frequently asked questions concerning being pulled over for a DWI in Texas is whether or not you have the right to refuse a blood or breath test. People want to know if you have to take one and they often want to know what happens when you refuse a breathalyzer test. Read on to learn about what happens when refusing a breathalyzer test, and check out how breathalyzers work in DWI stops.

Implied Consent

Texas’s “implied consent” law means that if you are lawfully arrested by a police officer with enough probable cause to believe you were driving while intoxicated, then you consent to taking one or more chemical tests of blood or breath to determine your blood alcohol content (BAC). Learn about what they look for in DWI stops here. It is actually required by Texas law to take a blood or breath test if you are arrested for a DWI, and the test must be taken as soon as possible from when you were last driving. The officer gets to choose which test (blood or breath) you take. Once you submit to the officer’s test, however, you have the right to have a blood test taken within two hours of your arrest by a medical professional of your choice.

Refusing to Take the Test

You may refuse the test, but if you are arrested the officer must tell you and give you notice in writing that if you refuse to take a test, then evidence of your refusal can be used against you in court and your license will be suspended for at least 180 days. The officer should also tell you that if you decide to take a test and the results show that your BAC is above the legal limit, then your license will be suspended for at least 90 days. After explaining these consequences, the officer can ask you to take a test. It is your choice to refuse or not.

If you decide to refuse, the officer will have you sign a statement that says he/she warned you of the consequences of refusal, asked you to take a test, and you refused. Then the officer will take your license. In its place, you will get a temporary permit that is good for 41 days. Within the first 15 days, you can request a hearing to challenge the suspension of your license. If you do not request a hearing, or if you do but fail to prove that the officer did not have a reasonable belief that you had driven drunk or that you actually did not refuse a test, then your license will remain suspended for 180 days if this is your first refusal. For your second/subsequent refusal within ten years, the suspension will last for two years.

Generally, an officer cannot make you take a test if you refuse thought there are some exceptions. For example, you must take a test if your current arrest involved an accident where someone else was seriously injured or killed. In addition, you will have to take a test if you have had two prior DWI convictions or if you have had only one prior DWI conviction but there had been a child in the car, or someone was seriously injured or killed.

If you have been arrested on a DWI charge in Texas, you’ll need help from experienced DWI attorneys, like us. Contact us today!

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