Refusal to take a Breath Test in Texas

Breath tests are administered when a police officer suspects you are operating a vehicle, including a watercraft, under the influence of alcohol. Generally, breath tests are administered after you already failed a sobriety test or gave the officer probable cause in some way, shape or form that you are under the influence of alcohol illegally. Sometimes, people in this situation refuse to take a breath test, and this is your right, but it can carry certain consequences for refusing. Doug Murphy explains the nature of breath test refusals in Texas, and why it is important for you to seek legal assistance if you have been charged with a DWI or related offense.

Texas Implied Consent Laws

When you obtain a license in the State of Texas, you commit to obey the rules of the road. Part of this responsibility is your implied consent to submit to a breath test if a law enforcement agent believes there is probable cause to detain you for driving while intoxicated. You are not required to provide information or evidence that can be used against you later in court. Thus, you have every right to refuse to take a breath test.

Prior to November 28, 2014, law enforcement agents in Texas were able to take a blood sample anyway without a warrant, regardless if you refuse a breath test. After a U.S. Supreme Court decision ruled that taking breath and blood samples of a person without consent and without a warrant is unconstitutional, police officers in Texas can no longer compel--without a valid search warrant-- you to provide a breath sample to test your blood alcohol content (BAC) level even if you do not consent to it at the time of the request. This holds true even in cases of suspected driving while intoxicated with a child or other felony DWI-related offense, like intoxication assault or intoxication manslaughter.

What happens if I refuse a breath test?

If an officer has probable cause, he or she will place you under arrest. At that time he or she may request a breath test, but first, the officer must read and provide in wiring a Statutory Warning (DIC-24) that explains the legal consequences of refusing or failing a breath or blood test. The officer will advise you in writing that a refusal to take the breath test can be submitted as evidence against you in court and you will lose your driving privilege for a minimum of 180 days, or two years if you have an alcohol or drug-related enforcement contact within 10 years. The officer should also advise you that if you take a breath or blood test, and your legal blood alcohol content (BAC) level is above the legal limit, your license may also be revoked for 90 days. Once you have been properly provided the Statutory Warning, the officer can only then ask for a breath or blood test.

If you refuse a breath test, the first thing the officer will do is request your signature on a statement whereby you acknowledge that you were warned by the officer of the consequences for the breath test refusal, that you were asked to take a breath test, and that you refused. Second, the officer will take your license. In lieu of your driver's license, you will be given a Notice of Suspension, which also acts as a temporary driving permit, so that you can drive for 40 days. Third, the officer may contact a judge for a search warrant. The officer has the right to choose a breath or blood test. If you refused a breath test, it is likely that the officer will request a search warrant to take a blood sample.

Are there Exceptions to the Right to Refuse to take a Breath Test?

Yes, there is only one exception, when police have a warrant. When police have a warrant, they can legally compel you to give blood rather than compel you to perform a breath test.

Should I Refuse a Breath Test in Texas?

This question is asked a lot, and for good reason: there's no simple answer. Prior to the widespread use of search warrants, the advice was simply to refuse a breath test. The use of search warrants has changed this advice. Breath testing is inherently unreliable and the test makes many assumptions. It is a one size fits all approach that does not fit everyone. The science and algorithms behind breath testing are based upon the law of averages. If you personally are above or below those averages you will be forced to wear a shoe that is not your size when it comes to breath testing. Thus, a breath test can erroneously cause you to fail even if you are not legally intoxicated. Breath tests are well known to have interferents that falsely inflate a breath test score. Breath testing does not generally need an expert for a competent lawyer to demonstrate lack of accuracy and reliability with breath testing. Blood testing can be more accurate and reliable if conducted correctly, however, there are many people involved in the blood testing chain of custody of a blood sample that can often lead to other problems and issues. Compared side by side, blood is more accurate assuming all protocols are complied with.

What do I do after I refused a breath test?

If you refused a breath test, then there are two things you must do upon your release from police custody: (1) find an experienced lawyer; and (2) request within 15 days a hearing to challenge the suspension of your driver's license, but if you retain an attorney in due time, he or she can request the hearing for you, which works to your benefit in case you need to appeal the administrative hearing.

Find an Experienced and Qualified DWI Lawyer

If you have refused a breath test, chances are you have been charged with a DWI or related offense. A DWI is a serious charge, one that warrants a strong challenge in court. Having a defense attorney that is experienced, knowledgeable, aggressive, and resourceful will help secure for you a successful outcome to your case. In fact, an attorney who is both Board Certified in DWI and criminal defense has proven skills, and there are only two in the whole State of Texas who have accomplished the latter task, and Doug Murphy is one of them.

Doug Murphy Law Firm, P.C. is located in Houston, Texas, but he represents clients throughout the greater Houston, TX community. His experience provides insight, and his insight gets results. He approaches each case from different angles and will do the same for your case. More importantly, he will not let a refusal to take a breath test go unchallenged if it is submitted as evidence.

Request an Administrative Hearing

You have 15 days to request a hearing to challenge the suspension of your license. If the 15 days expires and you have not yet requested your hearing, you forgo the right to one. On the other hand, if you do request the hearing in due time, then a hearing will be scheduled. The prosecution must prove that you were operating your vehicle while illegally intoxicated and/or you refused to submit a breath sample for BAC testing. The standard of proof is lower at an administrative hearing than it is at a criminal trial, i.e., only a preponderance of the evidence must indicate you were driving while intoxicated rather than evidence that proves it beyond a reasonable doubt.

If you cannot successfully defend yourself, your driver's license will remain suspended for 180 days for first refusals. If the refusal is your second or subsequent refusal within ten years, your driver's license could be suspended for two years.

With an experienced attorney, however, your odds of a successful outcome are greater. Doug Murphy knows how to perforate the arguments and evidence of the State. He will work with you to uncover all the facts of the case and use it to build a defense strategy for you.

Can Doug Murphy Defend Against My Breath Test Refusal at Trial in Texas?

Doug Murphy is the kind of lawyer who knows we all make mistakes, and he doesn't want you to end up with a criminal record because of it. He fights. He doesn't settle -- that can still leave you with a criminal record and there are collateral consequences to that in addition to any court-ordered sentence. Doug Murphy's first priority is dismissal before trial through strategic negotiation. His second priority is an acquittal by jury trial.

Doug Murphy will challenge evidence that you refused to take a breath test in the event the matter goes to court. The police may have a statement with your signature, but Doug Murphy has context that he will provide in order to help jurors understand the unique circumstances of your arrest.

For instance, for some of you, you may not have known that you were “refusing” to submit to a breath test. There's a lot going on during a traffic stop: your nervous, the officer is asking a lot of questions, you have to walk in an unnatural manner for your sobriety test, among man other things. It can be confusing for someone being interrogated by the police for DWI. In addition, police are not always patient and may take your confusion as refusal. As a result of these circumstances, you may have refused without intending to refuse the breath test.

Other circumstances that Doug Murphy could use to challenge a refusal if submitted as evidence include the following:

  • The law enforcement agent did not explain to you the consequences of refusing to take a breath test.
  • You tried to tell the law enforcement agent that you have a health condition that would likely create a false reading, but it went unheeded.
  • You attempted to request a blood or urine test, and the police officer mistook this request as refusal.

Let this be a reminder to you: Do not think that because you refused to take a breath test, there's all this evidence against you, so there's no point to hire an attorney. This thinking would be a huge error on your behalf if you acted on it. Consequences of a DWI can include long jail terms and steep fines as well as collateral consequences that could very well be with you for the rest of your life, such as losing the ability to possess certain professional licenses or security clearance, inability to obtain financial aid for college, inability to rent or lease at many real estate complexes, unable to find a good job due to background checks, among other collateral consequences.

Thus, challenging your case is crucial to getting your life back, and winning your case is what Doug Murphy intends to do.

Comprehensive, Resourceful DWI Lawyer in Houston, Texas

At Doug Murphy Law Firm, we devote our resources and capabilities to defend our clients' rights. We have decades of proven experience and a reputation earned in the courtroom for successful results. Attorney Doug Murphy is a Board-certified criminal defense lawyer and a Board-certified DWI lawyer who not only fights on behalf of his clients but constantly gives back to the legal community to teach other attorneys how to do the same. He will help you protect your right to refuse a breath test and challenge your DWI case in court. Contact Doug Murphy online or at 713-229-8333 today to discuss the circumstances of your case.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.