Breath & Blood Testing

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Do I have to take the test?

Maybe! Texas law deems that all persons who drive with Texas Driver’s licenses have already conditionally agreed, after their arrest, to take either a breath or blood test upon being properly requested to do so by a police officer. This deemed consent only arises where the person has driven in a public place. Examples of public places are public roads, highways, beaches, parking garages and other places where the public or a substantial part of the public may gain access. There is no such deemed consent, or as it is sometimes called “implied consent” for a urine test.

Can I refuse a required breath or blood test?

Yes! Our law provides that where the implied consent law is applicable, the person arrested for DWI may refuse to take the requested test. Such a refusal, however, can result in the following penalties:

  • suspension of your driving privileges for 180 days if this is your first arrest for DWI;
  • a two-year suspension for a subsequent arrest within ten years if, in the first arrest you refused to submit to testing; and,
  • the admission into evidence of your refusal to take the breath test in the subsequent DWI criminal trial. The purpose of this admission, from the prosecution’s viewpoint, is to imply to the judge or jury, that the refusal was premised on the belief that the driver thought he was too intoxicated to pass the test.
  • if you do submit to alcohol CONCENTRATION testing and fail, your driver’s license privileges can be suspended, and the test result may come into evidence in the criminal trial. The possible suspension periods are as follows:
    • 90 days if your driving record shows no prior alcohol-related arrests; and,
    • one year if you have a prior conviction or suspension within the preceding ten years.