You may have heard that some attorneys advise potential clients not to perform the breath-alcohol test when requested by a police officer. The idea is that blowing into that breathalyzer gives the officer clear evidence that you are drunk, assuming you are. Why would you give the officer the evidence needed to arrest you if you have the choice?
You may end up sorry if you refuse a breathalyzer test in Texas. This is because refusing comes with a consequence: the suspension of your driver’s license. And, refusing to blow won’t necessarily mean the officer won’t get the evidence anyway.
That is because the officer may already have probable cause to believe you are driving drunk. With probable cause, the officer can get a warrant for a blood test, which could yield the evidence needed to arrest and charge you.
Moreover, the officer may not need the evidence from a breathalyzer or blood test. It is enough for the officer to observe, based on his or her professional experience, that you appear drunk and are refusing to take a breathalyzer test. That’s right: your refusal can be used against you in court.
While the blood-alcohol content revealed by breathalyzer and blood tests is the easiest way to prove someone is drunk, it’s not the only way.
What will actually happen if you refuse
If you appear to the officer to be drunk but refuse to take a breathalyzer test, the officer will immediately take your license, give you a notice that your license is being suspended, and give you a temporary driving permit. You have 15 days from the date of your arrest to request an administrative license revocation hearing.
However, you should understand that all the state has to prove at your administrative license revocation hearing is that you did refuse to take the breathalyzer test when requested by law enforcement. They don’t have to prove you were drunk.
If the judge at this hearing determines the state has proved you refused the breathalyzer test, your license will be suspended on the 40th day after your arrest.
How long will my license be suspended?
Refusing to perform a breathalyzer test for the first time typically results in a driver’s license suspension of 180 days. If you have previously refused a breathalyzer test, or if you have a DWI, intoxication assault or intoxication manslaughter conviction on your record from within the past 10 years, your license will be suspended for two years.
Those license suspensions are longer than they would be for a DWI conviction. Worse, you can receive a suspension for refusing a breath test in addition to the suspension you get for a DWI conviction, if you are convicted anyway. The penalties are even worse for commercial drivers.
What will I do? I need to drive for work
Luckily, many people are eligible for an occupational license during the license suspension period. This allows you to drive a non-commercial vehicle to and from work or school and to perform essential household duties. In order to get this type of license, however, you need to petition the court.
What should I do if I’m pulled over?
Obviously, it’s best not to drive drunk in the first place. If you are drunk, however, and get pulled over by Texas law enforcement, you should be polite, cooperate with the officer, and exercise your right to remain silent.