Managing Attorney
In the Houston area, dozens of people are arrested every day and charged with Driving While Intoxicated (DWI). Immediately after an arrest, the police will ask for a breath (or blood sample) to test for the presence of alcohol or other controlled substances. But what happens if you refuse to give a breath sample? What are the legal consequences of refusing to give a breath sample after a DWI arrest?
What are the legal consequences of refusing a breath test?
Under the Texas Transportation Code 724.011, when a person is arrested for an offense involving drinking and driving (or boating) in a public place, the person is deemed to have consented to submit to the taking of breath or blood to determine the concentration of alcohol or drugs in the person’s system (this is known as “implied consent”). However, a person may always withdraw their consent by refusing to allow a breath or blood test after a request from an officer.
There are specific consequences to a person’s driving privileges when a person refuses or “fails” a breath or blood test (by giving a result above the legal limit of .08). These consequences are contained in the paperwork that law enforcement is trained to read to a person who has been arrested for DWI, prior to asking for a test. A refusal or failure triggers an administrative hearing known as an Administrative License Revocation (ALR) hearing, and the length of the potential suspension will vary depending on whether a person refuses a test or fails a test. A refusal is subject to a 180-day driver’s license suspension, and a failure is subject to a 90-day driver’s license suspension.
It is very important to understand that a driver’s license suspension after a DWI arrest is not automatic. A person has 15 days to make a request to fight the suspension of their license at an ALR hearing. An ALR hearing is totally separate from the criminal case and takes place in a different court, with a different judge and prosecutor. An ALR hearing only deals with the question of whether a person’s driving privileges will be suspended. If an ALR request is not timely made, then the person’s license will be automatically suspended 40 days after the person’s arrest under Texas Transportation Code 524.034.
Is it a good idea to refuse a breath test?
This is a question that is debated among DWI lawyers and the answer will likely depend on where you live. In Houston, if you are arrested for a DWI and refuse a breath test, then the police will almost certainly obtain a search warrant for your blood, which you may not refuse (in some smaller counties, the police may not have the resources to apply for a warrant and get it signed by a judge in every case). In general, blood is considered to be more accurate than a breath test, so the net result is that by refusing a breath test, prosecutors will end up with stronger evidence to use against you and you will be subject to a longer potential driver’s license suspension.
Will refusing to give a breath sample affect the outcome of my DWI case?
As noted above, a DWI case and an ALR hearing (which only deals with a potential suspension of your driving privileges) are separate and do not typically affect one another. However, refusing a breath test could still impact your DWI in some ways: First, as noted above, if you refuse to provide a breath sample in a county where the police will get a warrant for your blood after a refusal (including Harris County), then the police will take your blood. Also, if your DWI case goes to trial, and you refuse to give a breath test, then prosecutors are allowed to argue that you had something to hide by not submitting to a breath test (this is an argument that is not permitted after invoking other rights, like your right to remain silent). If you are acquitted (found “not guilty”) at trial, then the acquittal reverses any ALR suspension.
The consequences of refusing a breath or blood test can be complex, and it is always a good idea to hire an experienced DWI attorney to help guide you through the process and maximize your chances of protecting your driving privileges. Ceja Law Firm is one of the premier Spanish-speaking DWI law firms in the Houston area. If you are charged with DWI anywhere in the Houston area, Ceja Law Firm is an excellent choice to help you successfully navigate a DWI.
