Ask Deandra: Can I Refuse a Breath Test in Texas?

Here is the longer answer: what Texas law actually requires, what happens when you say no, and how the decision plays out in real DWI cases.

Texas Implied Consent: The Law Behind the Request

Under Texas Transportation Code 724.011, every person who operates a motor vehicle in a public place in Texas is deemed to have consented to the taking of one or more specimens of breath or blood to determine alcohol concentration or the presence of a controlled substance, if arrested on suspicion of DWI or another intoxication offense. This is called the implied consent law.

Implied consent does not mean you cannot say no. It means that if you say no, the State has already set up a series of consequences for that refusal, and the officer is required to tell you what they are before asking.

That warning is not optional and it is not informal. Section 724.015 requires the officer to inform you, both orally and in writing, of what refusing will cost you and what failing will cost you. The document is the DIC-24 statutory warning, and it covers eight specific points, including that refusal may be used against you in a later prosecution, that refusal brings a suspension of at least 180 days, that the officer may apply for a warrant to take a specimen anyway, and that you have the right to a hearing if you ask for one within 15 days. Only after that warning is given and you have had a chance to respond can the officer report your answer as a refusal.

What Happens If You Refuse

If you refuse a breath or blood test after a lawful DWI arrest, three things happen in short order:

• Automatic license suspension. Under the Administrative License Revocation process, Section 724.035 directs the Texas Department of Public Safety to suspend your license for 180 days on a first refusal, and for two years if your driving record shows one or more alcohol-related or drug-related enforcement contacts during the 10 years preceding the arrest. The suspension is administrative, which means it happens independent of the criminal DWI case, and it takes effect on the 40th day after you receive notice.
• You have 15 days to request a hearing. The deadline to request an ALR hearing runs from the date you were served with the notice of suspension, not the date of arrest, though the two are often the same day. Missing that deadline means losing the license by default. This is one of the most common and costly mistakes in a Texas DWI case.
• Your refusal becomes evidence. This is statutory, not merely a matter of custom. Section 724.061 provides that a refusal, whether express or the result of an intentional failure to give a specimen, may be introduced into evidence at trial. The Supreme Court held in South Dakota v. Neville, 459 U.S. 553 (1983), that admitting a refusal does not violate the Fifth Amendment. Prosecutors routinely argue that refusal shows consciousness of guilt.

A refusal is not a dead end. It just shifts where the fight happens. A well-prepared ALR hearing can preserve driving privileges even when the criminal case is still pending, and the consciousness-of-guilt argument has defensible responses when the refusal is put in context. People refuse for reasons that have nothing to do with guilt, including confusion about a warning read to them once at the roadside at two in the morning.

What Happens If You Consent

If you consent and take the breath test, you are blowing into an Intoxilyzer 9000, the current instrument in use across Texas. The machine produces a number that will be presented to a jury as an alcohol concentration. That number is not as reliable as the State would like you to believe. Among the issues a forensic defense addresses:

• Partition ratio variability. The Intoxilyzer assumes a fixed 2,100 to 1 ratio of alcohol in blood to alcohol in breath. Real partition ratios vary from roughly 1,100 to 1 up to 3,400 to 1 across individuals and conditions, and a ratio below 2,100 to 1 produces a falsely elevated reading. One caution worth knowing: because Penal Code 49.01 defines the offense in breath units, grams of alcohol per 210 liters of breath, partition ratio variability is not by itself an answer to a per se breath charge in Texas. It does real work on the impairment theory and on any attempt to translate the breath number into a blood level.
• The 15-minute period. The rule is 37 Texas Administrative Code 19.3(a)(1), and it requires less than most people assume. The operator must remain in the continuous presence of the subject for at least 15 minutes and exercise reasonable care that nothing goes in the mouth. The same rule says in terms that direct observation is not necessary. So the productive challenge is to the reasonable care prong and to the science of undetected mouth alcohol, not to a watching requirement the rule never imposed.
• GERD, acid reflux, and diabetes. Medical conditions that produce mouth alcohol or alter breath chemistry can artificially elevate readings.
• Calibration and maintenance. Every Intoxilyzer has maintenance and calibration records that can be obtained and challenged.

Consenting to a breath test does not mean the number is unbeatable. It means the defense fight moves from implied consent and refusal to the forensic reliability of the instrument, which is worked through on The Breath Test.

Can the Police Still Get Your Blood If You Refuse?

Yes, in several situations. Refusal does not end the inquiry. Under Texas Transportation Code 724.012 and United States Supreme Court precedent, the officer has two paths after a refusal.

• Mandatory testing circumstances. Section 724.012(a-1) requires a blood specimen where the person was operating a vehicle involved in a collision and the officer reasonably believes someone has died, will die, or has suffered serious bodily injury as a direct result. Section 724.012(b) adds three more: a collision in which someone other than the driver suffered bodily injury and was transported to a hospital or other medical facility for treatment; a charge under Penal Code 49.045 or 49.061, the child passenger offenses; and a record showing one prior conviction under 49.045, 49.061, 49.07, or 49.08, or two or more prior convictions under 49.04, 49.05, 49.06, or 49.065.
• Search warrant for blood. In any DWI case, the officer can apply for a search warrant authorizing a blood draw.

The word mandatory misleads people, because the statute itself no longer permits a warrantless draw on that basis alone. Section 724.012(e) provides that an officer may not require a specimen under the section unless the officer obtains a warrant or has probable cause to believe exigent circumstances exist. That language reflects a line of decisions. In Missouri v. McNeely, 569 U.S. 141 (2013), the Supreme Court held that the natural dissipation of alcohol does not by itself create the kind of emergency that lets officers skip the warrant requirement, and in State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2014), the Court of Criminal Appeals held that the Texas implied consent and mandatory draw provisions do not create a standalone exception to the warrant requirement.

Two later decisions round out the picture. In Birchfield v. North Dakota, 579 U.S. 438 (2016), the Supreme Court held that a warrantless breath test can be justified as a search incident to arrest but a warrantless blood draw cannot, because a blood draw is significantly more intrusive, and that a driver cannot be criminally punished for refusing a blood test. In Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), a plurality held that when a driver is unconscious and cannot be given a breath test, police may almost always order a warrantless draw under the exigent circumstances doctrine, leaving the defense to rebut that presumption where there was time to get a warrant. The practical result in most refusal cases is that a valid warrant, or a genuine exception to the warrant requirement, is required before blood can be drawn.

Warrants are challengeable. Every warrant is only as strong as the affidavit supporting it, and a defense review of the affidavit frequently surfaces material omissions, conclusory language, boilerplate recitations, and factual errors that support a motion to suppress.

The Strategic Question: Should You Refuse?

There is no universal right answer. The decision depends on facts you will not fully know in the moment. That said, the considerations that actually drive the analysis are:

• Your estimated BAC. If you have had one or two drinks and are confident you are under the legal limit of 0.08, consenting may produce a number that ends the case. If you have had significantly more, the number on the machine is harder to defend than the fact of refusal alone.
• Whether this is a first or repeat offense. A refusal with a prior enforcement contact in the preceding 10 years triggers a two-year ALR suspension rather than 180 days. Prior convictions also change the mandatory testing analysis under 724.012.
• Your license needs. If you rely on driving for work, the length and terms of any suspension matter enormously. Occupational driver’s licenses and ignition interlock restricted licenses exist to mitigate the hardship, and the interlock restricted license under Section 521.246 is often the better path, because it removes the waiting period that applies to a conventional occupational license and carries no time, place, or purpose restrictions.
• The circumstances of the stop and arrest. A weak stop, a thin probable-cause basis, or a flawed warrant affidavit changes the forensic calculus. Sometimes the strongest defense is not avoiding the test. It is attacking the arrest itself.

This is why so many DWI attorneys advise clients in advance: if you are ever going to be stopped, you should already know how you would respond. Deciding under the flashing lights at 2 a.m., with an officer who is not neutral, is the worst possible time to think through the law for the first time.

What to Do If You Have Already Refused

If you have already refused a breath or blood test, the single most important step is the 15-day ALR deadline. Once the notice of suspension is served, the clock starts running. Specifically:

• Calendar the 15-day deadline. Count from the date of service of the notice, not the date of arrest, though the two may be the same day. Missing the window forfeits the hearing, and the suspension takes effect on the 40th day after notice.
• Do not talk to prosecutors or investigators without counsel. Anything you say can be used against you, and friendly-sounding outreach from a prosecutor’s office is not the neutral conversation it is presented to be.
• Hire a DWI defense lawyer with forensic training. Breath and blood cases are forensic cases. The defense attorney should be able to read a chromatogram, question the instrument’s validation, and cross-examine the analyst, not just negotiate with the prosecutor.

The Bottom Line

You can refuse a breath test in Texas. Refusal is not a crime, and refusal is not a confession. But refusal has real consequences, including a potential license suspension, a 15-day deadline that is easy to miss, a statutory framework that lets officers pursue a blood warrant anyway, and a courtroom narrative that prosecutors will try to turn against you. None of these consequences are unbeatable. All of them are easier to address with a defense lawyer who understands both the law and the science.

DWI Defense at Deandra Grant Law

Deandra Grant Law defends DWI and intoxication-offense cases across North and Central Texas including Dallas, Fort Worth, Plano, McKinney, Frisco, Allen, Lewisville, Denton, Rockwall, and Waco. Our team includes an ACS-CHAL Forensic Lawyer-Scientist with a Master of Science in Pharmaceutical Science and a Graduate Certificate in Forensic Toxicology.

If you have been arrested for DWI, whether you refused a test or took one, call Deandra Grant Law at (214) 225-7117 or visit texasdwisite.com to schedule a confidential consultation. If you refused, remember the 15-day ALR deadline. Call today.

Have a DWI question you want answered in this series? Submit it at texasdwisite.com and you might see it featured in a future Ask Deandra post.