Larry P. McDougal
Larry P. McDougal - Attorney at Law
Richmond, Texas
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Can I refuse to take a breathalyzer test in Texas?

If you are pulled over and suspected of drunk driving, the police officer may ask you to take a breathalyzer test to measure the amount of alcohol in your blood.

Generally speaking, you have the right to refuse blood alcohol testing unless there is a warrant, and you should always exercise that right by refusing to give a specimen of blood or breath.

However, there are several laws and policies that complicate the issue, which we will discuss below:

Implied Consent Law

All states including Texas now have implied consent laws in place, which hold that motorists give their consent to field sobriety tests and blood alcohol tests in DWI stops just by driving on the roads. A motorist risks an automatic driver's license suspension by refusing the tests.

Though, recent court decisions have greatly weakened these implied consent laws.

Administrative license revocation (ALR) hearings are separate from a DWI case, and in order challenge a license suspension, the driver must request a hearing within 15 days of the DWI arrest. An experienced defense lawyer can be crucial in this process.

Should you give a specimen of your breath or blood for testing and the results come back at .08 or higher, your license will still be suspended in Texas.

That's why you should only consent to giving a specimen of blood or breath if you have not been drinking any alcohol and have not taken any illegal drugs in the past 48 hours.

A Warrant Is Needed

Ultimately, a driver has the right to refuse blood alcohol testing if he or she is willing to risk a license suspension, unless there is a warrant.

Both the U.S. Supreme Court and the Texas Court of Criminal Appeals have held that DWI testing without a warrant violates the Fourth Amendment protections of the Constitution.

This spring, the Court of Criminal Appeals affirmed that evidence gathered in a blood test that had been refused by the suspect had to be suppressed because the arresting officer did not obtain a search warrant.

Former Texas law allowed police to take blood samples without a warrant in cases involving felony DWI (such as a DWI involving a child passenger, the third or more conviction or an accident that resulted in injuries or death), but this law is no longer valid in light of the 2012 Court of Criminal Appeals decision.

If a warrant is granted, a driver must submit to blood alcohol testing. Texas officers can even use force to carry out the testing, if necessary.

No-Refusal Initiatives

The problem that law enforcement ran into was that by the time a warrant could be obtained, drivers had often sobered up beyond the .08 BAC threshold. That's why Texas and other states began adopting no-refusal initiatives.

As we discussed in this article, Texas uses no-refusal policies during certain time periods during the year -- primarily on holidays such as Memorial Day weekend. Using this strategy, judges are on call to issue search warrants right away so that blood samples can be taken immediately.

Many Texas counties such as Harris and Fort Bend have procedures in place so that a warrant for taking a blood specimen can be obtained at any time or day of the week.

However, these "no-refusal" warrants are controversial because many legal experts believe they lead to unconstitutional searches that can be based on little or flawed information. A driver who is charged with DWI based on a "no-refusal" warrant will need advice from an experienced DWI defense lawyer.

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