Texas Brethalyzer Refusal Laws

I have a couple of questions that hopefully lawyers and/or police officers could answer for me.

First of all, I don’t drink and drive, period. If I have a glass of alcohol, I don’t drive for at least several hours, period. I’m not trying to “beat the system” in any way, and would never drive drunk. I loathe people who do.

That being said, if I ever got pulled over and asked to take a breathalyzer, I would want to refuse. I have heard that even if you blow a 0.00, the officer is just going to arrest you anyway and try to come up with a reason for why you were showing signs of impaired driving, loss of faculties, etc. I don’t believe blowing can ever help. Maybe I’m wrong on that point. Every lawyer advertisement I see, everywhere, says DON’T BLOW! I tend to think they know what they’re talking about.

For Texas specifically, I want to know how the law is written, as in, I want to know what counts as refusing to blow. I know that if you refuse, its an automatic suspension of your license for 180 days.

What if, when the officer asks me to blow, I simply say “I am asserting my right to remain silent.” Does that count as refusing?

What if I ask several questions about it, on and on and on, without ever consenting or refusing? Basically just stall for time saying “I’m not saying either way right now, I need to know more about it before I answer.” What if I kept asking things about the reliability of breathalyzers, whether or not the sample will be retained so that it can be scientifically verified again at trial, etc.

What if I close my eyes and fall asleep?

Basically, what counts as a refusal? How long do I have from the moment he says “I need you to do a breathalyzer for me right now” to decide what I will do, give an answer either way, etc?

Thank you.

I don’t know the answers to your questions but this seems like a pretty strange thing to be concerned about for someone who never drinks and drives at all. I can’t imagine a 0.00 BAC result ever not being helpful.

Interesting that you say lawyer ads say not to take a breathalyzer. I don’t remember ever seeing that advice here in WA. I know that obviously the laws are supposed to be set up so that the penalty is at least as bad for refusing to take the breathalyzer than it is to take it and fail, but in practice it’s not always that clear I’m sure. But between refusing to take it or blowing a ZERO…I think the zero is always going to work out better.

There are many issues.

How do I know that this machine is calibrated properly and will accurately record my 0.00 reading?

Even if I blow a 0.00, the officer can still require me to submit to further testing. If it’s going to happen anyway, it doesn’t matter whether you consent to blowing or not.

AFAIK, Texas does not use a system that captures and stores your breath sample for future analysis and confirmation. Why would I submit to a supposedly scientific testing that cannot be repeated or confirmed at any time in the future?

Blowing a 0.00 not convince an officer that you are OK to drive. Instead, they will try to conjure up other reasons to get you in trouble.

I’m not a lawyer or a cop, but refusal to submit to testing will get you in trouble here in Georgia, and the situation seems to be similar in Texas. (Link to a DUI lawyer’s website.)

If the officer is determined to arrest you for something, yeah, they will find something. But a clean breath test can only help later. The calibration could be a concern if it was between .06 and .08 or something, but it seems extremely unlikely that your real BAC would be 0 and it would register as drunk.

Another thing, I know that here, if you fail a roadside breath test, you’re taken to the station for the official one. I think you can also request to go to the hospital for a blood test.

I have heard advice (advice I would follow) that you should never take the roadside sobriety tests like the one where you say the alphabet backwards, because it can’t help you and can only hurt you. But those are too subjective and you can fail just by being nervous or clumsy or whatever. But I wouldn’t worry about failing a breath test (or two of them) if I was 100% sober.

Are you, like, a terrible driver or something? :smiley:

Yes. I belief that in just about every state, when you get a license, you agree to take a breathalyzer test when asked by a law enforcement officer who has “probable cause.” To refuse can be a separate charge unto itself, I think. Moreover, if you actually go to trial, everyone in the jury will just assume that you refused because you were in fact drinking, and they’ll be more likely to believe the cop’s testimony of your driving and other behavior.

Keep in mind, the DUI lawyer is trying to drum up DUI business. If you don’t blow, you’re going to get arrested and the first thing you’re going to do is call him because he’s the guy who told you not to blow.

As for whether or not it’s calibrated, if you go to court, with a lawyer experienced in these cases, they’ll know to ask for the calibration records and if it hasn’t been calibrated within the proper time frame, the test will likely get tossed.

I don’t know about Texas, but in WI we have “implied consent” which states that if you’re on the road you’ve already given consent to have your BAC tested. If you refuse you’ll be arrested and in many cases you’ll end up having your blood drawn and tested that way.
That’s going to look bad, even if it comes back under the limit.

BUT here’s something to remember, if you refuse specifically to stall for time, it can work to your advantage. Let’s say you haven’t drank for a while but you think you may be over the limit. Do want to risk blowing a .09 now or refuse, get arrested, piss a lot of people off, but end up with a .05 by the time the draw your blood later. OTOH, if you just left the bar and you have a belly full of tequila, you might be at .07 now, but in and hour you’ll probably be at .1
I have a friend who had the Breathalyzer refused to him. They made him go get his blood drawn, knowing full well his BAC would be even higher by the time he got to the hospital.

I live in Texas and I’ve never heard of anybody being taken in for blowing a 0.0.

Every state, so far as I know, has implied consent laws for testing blood, breath, or urine for alcohol in a DWI/DUI context. WA’s is particularly draconian. Google around for WA DWI defense lawyer blogs. They’ll say that you need to consent. Now, what do we mean by consent? Consent at the road side? Probably not. My own strategy should this happen is to go for the blood draw (at a hospital----though there are cops who are “certified” as phlebotomists, since TX’s no-refusal law) if I think I’m innocent, and breath—at the station—if I think I might be guilty. The breath test is easier to attack in court. Probably still going to lose, but your chances are better. I would not do any roadside tests or breath tests: if it’s gotten to the point where you’re being asked to walk a line, odds are you’re going to jail anyway. The officer is just trying to gather more evidence against you. So why help her convict you? Insist on being taken to either the station or hospital for whichever test you want performed.

IANAL and this isn’t legal advice. This is just what I’ve been told a few years ago by people who practice dwi defense in TX. I’m probably misremembering. Refusing any tests gets you rung up for an administrative refusal to be tested. This, as the name suggests, means there’s an admin hearing, which is one more opportunity for the cop to not show up to court. This is unlikely, but every little bit helps, I guess.

The current practice of letting officers forcibly do blood draws is absolutely barbaric, IMHO.

Best way to avoid it is to not drink and drive, of course. A friend who practices dwi defense mentioned that his initial retainer would have covered 75 cab fares, even in a crappy taxi market like Houston. So there you go.

Just as a data point, on NYE, I was at a party but not drinking, nor had I had any alcohol in several days. Someone I know has a breathalyzer, which he uses to see if he can safely drive. I tried it and it gave me a result of 0.06 BAC. Now maybe it was not calibrated properly, but this kind of terrified me, that I could be found perilously close to the legal limit without even having imbibed.

A few years ago, I was on the jury in a DUI case where the plaintiff had refused the breathalyzer on the above-described grounds. The question of whether he refused a breath test was posed to the jury as a separate charge from the question of whether he was intoxicated.

FWIW, we found him guilty of both.

You’re supposed to wait 10 or 15 minutes between tests. So if you blew into it with out waiting that time frame, your results would have been less than accurate.

We discussed it in the other thread, and from what we were able to come up with, no state requires a person to submit to a breathalyzer or a field sobriety test on site. Implied consent laws only come into play after an arrest. So if the cop asks you to juggle monkeys while balancing on one foot? Politely decline. Blow into his hand held portable device? Politely decline. Be arrested and be at the station sitting in front of the machine and be asked to submit to the test? Decline, and your license will likely be suspended.

As others have said, if you had one drink several hours ago, there is very, very little chance that you will be suspected of DUI. Cops know what drunk drivers act like.

Had a client who refused to blow. If I remember correctly, refusing without a proper reason (like an unsanitary machine) carries as heavy a penalty as the highest level of intoxication. This is for a Canadian province. Quite likely that any well-thought out DUI legislation will do something similar.

  1. You won’t be subjected to the Intoxilyzer machine until after you’re arrested. They’re fairly big machines and cops don’t carry them around in their cars.

  2. There is such a thing as a portable breathalyzer, which anybody can buy, (actually, anybody could buy an Intoxilyzer, but they’re expensive). A cop may or may not ask or allow you to blow into one, but either way they’re not admissible in court, because they’re not scientifically proven to be accurate. (Even the Intoxilyzer can be off by .02, and still be considered “accurate”.)

  3. In Texas, the progression is 1. Traffic stop, 2. Smell of alcohol, bloodshot eyes etc., 3. Field sobriety tests (walk and turn, one leg stand, Rhomberg, HGN), and then 4. Arrest. Only then will you have an option to take or refuse the Intoxilyzer.

  4. If you refuse, there’s an automatic 180 suspension, unless you ask for a hearing within 15 days. If you blow and fail, the suspension is 90 days.

If you refuse to cooperate, the cop will mark you down as a refusal. Also, he may ask a judge for a warrant to stick you for blood. The important thing to remember is everything you do and say is being recorded. Also, it’s illegal not just to drive drunk but to drive after taking any drug or combination of drugs that prevents you from having the “normal use of your physical and mental faculties”.

If you haven’t had anything to drink, I’d ask to breathe into a portable. Of course, if you haven’t had anything, the cop’s probably not going to ask you to get out of the car in the first place.

Thanks for the good information everyone, but nobody has answered my actual question yet.

What, EXACTLY, constitutes refusal?

Does demanding I have access to my lawyer first constitute refusal?

Does just not saying anything at all constitute refusal?

Does asking question after question while saying, “I’m not saying I won’t blow, but…” constitute refusal?

What is the actual law and how is refusal defined or determined?

I’m sure the wording of the statute varies from state to state, but I bet that, in general, when a cop holds up the brethalyzer and says something like, “I’m asking you to blow into this device,” and if you don’t (no matter what you say or don’t say), he or she is going to put you down as a refusal. If you want to, you can plead not guilty and argue the semantics to describe your actions later in court (good luck with that). Really, it’s not that complicated.

I live in Ontario, so can’t answer your question, but what it sounds like is that you want a scenario where you can refuse, and not suffer any legal consequences for the refusal, even if you would have blown under the legal limit.

Refusal only works on that magic line that says legally intoxicated/ not intoxicated, as now a days, that would be the only sane reason to invoke it. The time between your arrest and when they do the state administered test, could mean the difference between simply paying a fine and suspension for refusal and evidence in court that yes you were legally intoxicated.

Its more to do with the insurance implications, that a DUI would entail, and should give lawyers more to work with, in your defense.


If you refuse the test, do you still have to do all the classes and victim impact panels and treatment programs and AA and all? When my friend got a DUI, that stuff all put together seemed like the worst part because it was just RELENTLESS. Plus in addition to the thousands of dollars in fines you already have to pay, you have to pay for the other bullshit. And you can’t drive to it! I could not believe how busy my friend was with all that stuff for a long time. Also there was community service and probation appointments (and probation fees). She said if she ever got another DUI she would kill herself.

I would refuse the roadside stuff because it is possible I would fail them despite not drinking. I have balance issues on occasion that get worse under stress, so would opt for breathalyzer or blood tests right from the start.

And despite not drinking at all, the fact that the breathalyzer can be off is somewhat worrisome, because my legal limit is half the standard one. Less room for error if you are only allowed a .04 limit.