The Common Law

Are you required to take a breathalyzer test?

If [I] get stopped for a DWI, do I have to take the Breathalyzer? What happens if I refuse?

To blow or not to blow: That is the question. While no one can force a driver to take a sobriety test, refusal to give a blood or breath sample may carry stiff consequences.

A driver arrested for DWI on a Texas roadway typically faces two separate proceedings – a criminal case arising from the DWI arrest itself, and a civil case initiated by refusal to submit to a blood or breath test or failing the test.

In a criminal DWI prosecution, sobriety-test refusal or failure may be one of several issues in the case. Usually the prosecution uses it as evidence that a driver was intoxicated at the time of arrest. Failure is obviously incriminating. Refusal may be used to imply that a driver knew he or she was too intoxicated to pass a sobriety test.

The penalties for a DWI conviction reflect the state's disdain for intoxicated drivers. A first-offense carries the possibility of a fine of up to $2,000, three to 180 days in jail, a driver's license suspension of 90 to 365 days, or all of the above.

In an ALR proceeding, driver's license privileges are the sole issue. Refusal or failure of a sobriety test invokes a mandatory suspension because under Texas law anyone who operates a motor vehicle on a Texas road tacitly agrees to submit to a breath or blood sobriety test if properly asked by a police officer.

The penalty for refusal to take a Breathalyzer test is an automatic 180-day suspension of driving privileges for a first-time offender, and two years for someone with previous drug- or alcohol-related contacts within 10 years of the arrest. The penalty for failing a Breathalyzer is less severe, at 90 days for a first-timer and one year for contacts within 10 years.

Remember that this question is completely avoidable – don't drink and drive!

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Marrs, Ellis & Hodge LLP,

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or

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