Can You Refuse a Sobriety Test in Texas?

Yes you can refuse a field sobriety test. There is not a requirement that a person must perform a sobriety test. Standard field sobriety tests are very difficult to perform perfectly. Even police officers do not do the complete test while demonstrating the tests to drivers.

Many people either believe they can pass field sobriety tests or think that they have to do them. The police officers usually give drivers the impression that the officer already believes the driver is fine and this group of exercises is just confirming that by casually offering these difficult balancing tests. The truth is the officer is looking for every single problem he or she can find to add to the police report after the driver is arrested for DUI or DWI.

Refusing Breathalyzer in Texas

First of all the breathalyzer is not the small handheld tester that is offered on the roadside. That is called a portable breath test (PBT). It is not admissible in court. The police use it to decide if a driver is close to a .08 blood alcohol content.

Refusing a breath test in Texas has consequences for a driver’s license. Refusing a breath test can result in a driver’s license suspension. The length of the DPS suspension whether refusing or failing the breath test (or blood) depends on different factors such as:

  • Is the driver under 21?
  • Has the driver had an alcohol stop DL issue in the last 10 years?
  • Does the driver have a commercial DL?
  • Was the driver operating a commercial vehicle at over .04 BAC?
  • Did the driver refuse breath and blood tests?
  • Did the driver consent to the test and fail by .08 result or higher?

Basically a suspension occurs when a driver:

  • Refuse to take or fail to complete a blood or breath test, or
  • Provide a blood or breath test that registers a blood alcohol concentration (BAC) of 0.08% or more while driving a non-commercial motor vehicle, or
  • Provide a blood or breath test that registers a blood alcohol concentration (BAC) of 0.04% or more while driving a commercial motor vehicle.

What Happens if I Say no to a Breathalyzer?

In Texas there is no law against refusing a breath or blood test like in some other states. In some jurisdictions outside of Texas it is an additional arrestable offense to refuse a breath or blood test. Many counties in Texas have a system set up where the officer applies for a blood search warrant to draw blood if the driver refuses to consent. This is the case whether the breathalyzer or a blood test is refused.

A blood search warrant requires a sworn affidavit to be typed up or filled out by the cop proving why they have a reason (probable cause) to ask the judge to sign the blood search warrant. Once a warrant is signed, whether it holds up later in court or not, the person will be forced to give blood. If the person refuses to cooperate in a blood draw they can be strapped to the chair. An additional offense of Resisting Search can be added if still uncooperative.

Should You Refuse a Breathalyzer?

If you are positive that you are not even close to a .08 BAC and are way below you may take the breath test. The machines are maintained (or not maintained) by human beings who make mistakes. The breath test machines are calibrated and cared for periodically by someone. There is no guarantee that the machines are accurate and in good working condition. The officer is certainly not going to prove is works fine before he or she has you blow into it at the jail.

Refusing will usually result in a longer suspension at the Administrative License Hearing (ALR). This can be inconvenient in the short run but help with the DWI case in court. Sometimes there is no blood test available to be given at the time of the breath test refusal.

Take a look for more blogs on DUI and DWI topics at http://erictorberson.com

Author: Eric Torberson

Eric Torberson is a licensed attorney in Texas as well as licensed in the federal courts of the southern and western districts of Texas.