Texas DWI FAQ, Part 3: Do I Have to Submit to a Breathalyzer?

Texas’ implied consent law requires drivers to submit to breath or blood tests when suspected of DWI. Of course, you can still refuse, but if you do, you will have your license suspended automatically for 180 days (or more, depending on whether this is your first offense). So, should you refuse a breath test if you think it’s likely that you will blow a .08 or higher?

The PBT

Officers will sometimes ask you to blow into a roadside breathalyzer known as a portable breath test, or PBT. What many people don’t realize is that you are not legally required to submit to a PBT. When we refer to the breath test, we are usually talking about the big machine you blow into once you have already been arrested, NOT a portable breathalyzer. PBTs are woefully inaccurate, and none of these devices have been approved or certified for use in Texas. If an officer asks you to take a roadside breath test, politely decline.

The Breathalyzer

The decision whether to refuse a breathalyzer test is more complicated. Once you refuse, the officer will give you written notice of the penalties for refusal and your license will be suspended for 180 days (for your first DWI). If you do not refuse and you blow .08 or higher, your license will be suspended for 90 days. Depending on other circumstances, you may spend some time in jail. It’s a bit of a catch-22 – do you give the state evidence of your impairment, or do you take the longer license suspension and risk the jury thinking that you refused because you know you were drunk?

In the end, the decision is yours, but you can always look to your DWI defense attorney for help making the right choice for your case.