Can I Refuse to Take a Breath Test?

If you are arrested for a DWI, the “implied consent” law in Texas requires you to take a breath or blood test. According to this law, if you are lawfully arrested by a police officer who has probable cause to believe that you have been driving while intoxicated, then you automatically consent to take a blood alcohol content (BAC) test.

Upon arrest, law enforcement should tell you and provide a notice in writing that if you refuse to take a test, then evidence of your refusal can be sued against you in court. Furthermore, your driver’s license will be suspended for at least 180 days.

The police officer should also tell you that if you choose to submit to a test which results in a BAC above the legal limit (0.08%), then your license will be suspended for at least 90 days. Once he or she explains these consequences, the officer can ask you to take a test.

On the other hand, DWI suspects are not required to submit to a preliminary breath test. It is imperative to distinguish between preliminary breath tests and evidential breath testing, which is performed after an arrest has been made.

The purpose of a preliminary breath test is to identify an intoxicated driver and collect evidence to establish probable cause. Evidential breath testing is used to determine the suspect’s level of intoxication and may be used as evidence in court.

Navigating the administrative and criminal justice system is no small matter, and those who face charges should always seek legal counsel from an experienced lawyer to ensure that they protect their rights and future.

If you have been arrested for a DWI in Bryan or College Station, contact our experienced criminal defense attorney at The Law Office of Shane Phelps, P.C. today.

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