If you live in Texas, you should know that you are required to take a breathalyzer test if an officer stops you and asks you to do so. When you get your license, you automatically agree that you will submit a breath test upon request. This is called implied consent.
If you don’t want to take the breath test, there is the option to refuse, but refusing carries potentially negative consequences. If you refuse to take the test, you’ll face a civil proceeding in which you could lose your license. Refusing or failing a breath test invokes a mandatory license suspension thanks to the implied consent law. However, you can contest the suspension of your driver’s license by requesting an administrative law hearing (ALR), but you must make the request within a certain number of days of being arrested (usually 15 days). Using the ALR driver’s license hearing process to fight to keep your license provides an excellent opportunity to collect information about the DWI charge, such as police reports and witness statements. You may also be able to question the arresting officer at the driver’s license hearing, which can help you build your defense to the criminal DWI charge. A smart lawyer can use the license suspension hearing to your advantage in the DWI case – even if your license ultimately gets suspended.
What happens if you refuse the test?
If you do not request a hearing to fight the driver’s license suspension, you automatically lose your license for 180 days if you refuse to take the breath test if you are a first-time offender. You will lose it for two years if you have previous drug- or alcohol-related contacts with police within the last 10 years. On the other hand, simply failing the breath test leads to a 90-day suspension.
What happens if you fail the test after taking it?
If you fail the breath test, the results can be used against you in court.
Failing a breath test is incriminating evidence that you drove while under the influence of alcohol, but it’s not an absolute. Your attorney can help you fight the charges by showing that you were not intoxicated or that the breath test was inaccurate due to malfunctions or improper testing. Keith Gore has obtained not-guilty verdicts in cases involving breath and blood tests over the legal limit.
While you could lose your license for refusing a test, it is an option you have. Remember that a breath test is only one way the police can try to prove that you’re intoxicated.
