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Texas DWI Breath Test Refusal


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Did you know that if you refuse a breath test when pulled over on suspicion of driving while intoxicated (DWI) in Texas, you may face more penalties than if you take the test and fail? It’s true—rather than having your license suspended for 90 days, you could face a 180-day license suspension (for a first offense). If you are facing charges for a Texas DWI breath test refusal, you should immediately contact a qualified defense attorney.

Why is refusing to take a breath test a crime? As part of the conditions for receiving your Texas driver’s license, you must consent to taking a breath, blood, or urine test if pulled over for drunk driving. This is known as the Implied Consent law.

If you are arrested for DWI and fail to take a breath test, your license may be automatically suspended by the Texas Department of Motor Vehicles. This administrative license suspension occurs whether or not you are convicted of drunk driving in criminal court. Please note that you only have 15 days after your arrest to request an administrative license hearing to avoid the loss of driving privileges.  

For a first breath test refusal, your license may be suspended for 180 days. For a second offense within ten years, this license suspension will last for two years.

Even if your license is suspended for refusing to take a breath test, you may still be eligible for an occupational license. This license allows you to drive to work, school, medical appointments, and other locations deemed appropriate by the court.

There are pros and cons to refusing to take a breath test. Refusing to take a breath test could lead to severe penalties; however, some DWI defense attorneys recommend that you refuse the test unless you are 100% positive that your blood alcohol content is below .08%. Refusing the test can also help you avoid a drunk-driving conviction, as the prosecution cannot prove your BAC at the time of arrest. The breath test refusal penalties are less than for a drunk-driving conviction, since you may be eligible for a limited permit. The downside is that if you are convicted of DWI, you face penalties both for the DWI and the breath test refusal.

Attorney Ken Gibson helps clients who have been charged with a breath test refusal in Austin, TX. Contact him today for advice on your DWI case and a complimentary consultation.