Law Office of
Rhett Braniff

Yes, you can refuse a breath or blood test, and you absolutely should.

If a law enforcement officer pulls you over in a traffic stop, they may request to subject you to a blood or breath test. The purpose of such tests is to measure your blood alcohol content to determine if you are driving while above the legal limit of intoxication. It is important to know, that by the time a breath or blood test has been requested, you are already under arrest, and nothing you say or do and any sample you provide will not change the fact that you are under arrest. If you go to the police station and blow 0.00, you will still be arrested.

The question then, is why would you ever provide a sample? The police do a good job of making you feel like you cannot refuse any of the tests. They will make you feel like you have to do the roadside acrobatics, and the invasive BAC testing, but this is not so. You refuse a blood or breath test during a Texas traffic stop. Doing so can help you won’t help you avoid a DWI charge, but it will help you avoid a DWI conviction.

When can I refuse a blood or breath test?

You have the legal right to refuse subjection to any form of BAC testing both before or after an arrest. Keep in mind that the police will obtain a warrant and take a blood sample without your consent if you have certain previous DWI convictions on your record, or if they have a “no refusal” policy in place. Nevertheless, make them get a warrant. Once you consent, you have you recourse to challenge the blood draw later.

Be aware also that Texas has an implied consent law that you agree to whenever you accept your driver’s license, meaning that you consent ahead of time to any BAC testing during a traffic stop. You have the right to revoke that consent, but refusing will result in a license suspension. No worries, though, you were likely going to receive a suspension for a sample over the limit anyway. Also, we can challenge the suspension in an Administrative License Revocation hearing, and get you an occupational driver’s license.

What are the penalties for refusing a blood or breath test?

Refusing a blood or breath test goes against the implied consent you provide when obtaining your driver’s license. The penalty, therefore, is an initial suspension of your license for 180 days. Subsequent refusals, or refusing with a DWI on your record, entails a license suspension of up to two years. A suspension for providing a sample over the legal limit is 90 days.