To Blow or Not to Blow: Refusing DWI Tests in Texas

If a police officer pulls you over this holiday season under suspicion of DWI, what should you do?

Under Texas’s implied consent law, drivers who are lawfully arrested by an officer that has probable cause to believe the drivers are intoxicated are required to submit to chemical testing. The key words, however, are “lawfully arrested.”

Often prior to an arrest, police officers will ask drivers suspected of driving under the influence to submit to a series of tests. The most common tests are the Standardized Field Sobriety Test (SFST) and the portable breath test (PBT). What many drivers are not aware of is that you are not required to submit to an SFST or a PBT. Furthermore, there is no additional penalty refusing these tests for the DWI.

The SFST, which consists of three tests (the walk and turn, the one-leg stand and the horizontal gaze nystagmus) as well as the PBT have serious problems that make them unreliable indicators of inebriation. Grading the SFST is a subjective process and even people who are totally sober can fail. And the PBT is conducted with breathalyzer devices that are not always accurate. For these reasons, you should always refuse the SFST as well as the PBT.

Once you are lawfully arrested, refusal to submit to blood, breath or urine tests (chosen by the police) can result in administrative penalties including the suspension of your driver’s license. However, refusing can also deny prosecutors evidence that could be used to push for higher penalties in court.

Should you refuse tests once you have been lawfully arrested? In some situations, refusal can be the better decision. For a first offense in Texas, refusal will result in a 180-day license suspension, whereas a first DWI will result in a 90-day suspension. But refusal will not necessarily prevent a conviction, and often your refusal will be used against you as evidence that you were, in fact, impaired.

As with any situation involving a DWI arrest, your best course of action is to immediately get in contact with a criminal defense attorney.