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DWI Test Refusal

Every state in the nation has implied consent laws, including Texas. Under these laws, drivers give their implied consent to chemical testing for determining blood alcohol concentration (BAC) simply by being licensed to drive in those states.

When a person suspected of driving while intoxicated (DWI) or driving under the influence (DUI) in Texas refuses to submit to chemical testing, his or her driver’s licenses will automatically be suspended. Despite these possible penalties, it remains important for people to understand they still have the right to refuse to submit to breath or blood testing.

Attorney for DWI Test Refusal Arrests in Brownsville, TX

Were you recently arrested for refusing to submit to DWI testing anywhere in South Texas? Do not make any statement to authorities until you have first contacted The Gracia Law Firm, P.C. .

Jonathan Gracia is an experienced criminal defense lawyer in Brownsville who defends clients facing drunk driving charges in Willacy County, Cameron County, and Hidalgo County. You can have our attorney provide a complete evaluation of your case when you call 956-504-2211 to schedule a free, confidential consultation.

Cameron County DWI Test Refusal Information Center

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Texas Implied Consent Laws

Texas Transportation Code § 724.011 establishes that a person arrested for an offense arising out of acts allegedly committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Texas Alcoholic Beverage Code § 106.041 (driving or operating watercraft under the influence of alcohol by minor), the person is deemed to have consented to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.

Under Texas Transportation Code § 724.012(a), one or more specimens of a person’s breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person was operating a motor vehicle in a public place, or a watercraft while intoxicated, or was in violation of Texas Alcoholic Beverage Code § 106.041.

Texas Transportation Code § 724.012(b) further states that a peace officer can require the taking of a specimen of the person’s breath or blood under any of the following circumstances if the officer arrests the person for an offense involving the operation of a motor vehicle or a watercraft and the person refuses the officer’s request to submit to the taking of a specimen voluntarily:

  • the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident: any individual has died or will die; an individual other than the person has suffered serious bodily injury; or an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;
  • the offense for which the officer arrests the person is an offense under Texas Penal Code § 49.045 (driving while intoxicated with child passenger); or
  • at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person: has been previously convicted of or placed on community supervision for an offense under Texas Penal Code § 49.045, 49.07 (intoxication assault), or 49.08 (intoxication manslaughter), or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Texas Penal Code § 49.04 (DWI), 49.05 (flying while intoxicated), 49.06 (boating while intoxicated or BWI), or 49.065 (assembling or operating an amusement ride while intoxicated), or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.

Except as provided above, Texas Transportation Code § 724.013 states that a specimen cannot be taken if a person refuses to submit to the taking of a specimen designated by a peace officer. Under Texas Transportation Code § 724.014, a person who is dead, unconscious, or otherwise incapable of refusal is considered not to have withdrawn implied consent.

Before requesting a person to submit to the taking of a specimen, Texas Transportation Code § 724.015 states that an officer must inform the person orally and in writing that:

  • if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent prosecution;
  • if the person refuses to submit to the taking of the specimen, the person’s license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days;
  • if the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person;
  • if the person is 21 years of age or older and submits to the taking of a specimen designated by the officer and an analysis of the specimen shows the person had an alcohol concentration of a level specified by Chapter 49 of the Texas Penal Code, the person’s license to operate a motor vehicle will be automatically suspended for not less than 90 days, whether or not the person is subsequently prosecuted as a result of the arrest;
  • if the person is younger than 21 years of age and has any detectable amount of alcohol in the person’s system, the person’s license to operate a motor vehicle will be automatically suspended for not less than 60 days even if the person submits to the taking of the specimen, but that if the person submits to the taking of the specimen and an analysis of the specimen shows that the person had an alcohol concentration less than the level specified by Chapter 49 of the Texas Penal Code, the person may be subject to criminal penalties less severe than those provided under that chapter;
  • if the officer determines that the person is a resident without a license to operate a motor vehicle in this state, the department will deny to the person the issuance of a license, whether or not the person is subsequently prosecuted as a result of the arrest, under the same conditions and for the same periods that would have applied to a revocation of the person’s driver’s license if the person had held a driver’s license issued by this state; and
  • the person has a right to a hearing on the suspension or denial if, not later than the 15th day after the date on which the person receives the notice of suspension or denial or on which the person is considered to have received the notice by mail as provided by law, the department receives, at its headquarters in Austin, a written demand, including a facsimile transmission, or a request in another form prescribed by the department for the hearing.

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DWI Test Refusal Penalties in Brownsville

Texas Transportation Code § 724.031 establishes that if a person refuses the request of a peace officer to submit to the taking of a specimen, the peace officer must request that the person sign a statement that the officer requested that the person submit to the taking of a specimen; the person was informed of the consequences of not submitting to the taking of a specimen; and the person refused to submit to the taking of a specimen.

Under Texas Transportation Code § 724.035(a), the Texas Department of Public Safety (DPS) will suspend a person’s license to operate a motor vehicle on a public highway for 180 days or, if the person is a resident without a license, issue an order denying the issuance of a license to the person for 180 days, if that person refuses the request of a peace officer to submit to the taking of a specimen.

Texas Transportation Code § 724.035(b) further states that the period of suspension or denial is two years if the person’s driving record shows one or more alcohol-related or drug-related enforcement contacts, as defined by Texas Transportation Code § 524.001(3), during the 10 years preceding the date of the person’s arrest.

A suspension or denial takes effect on the 40th day after the date on which the person receives notice of suspension or denial under Texas Transportation Code § 724.032(a); or is considered to have received notice of suspension or denial under Texas Transportation Code § 724.033. Alleged offenders have only 15 days to request an administrative hearing with the State Office of Administrative Hearings.

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Cameron County DWI Test Refusal Resources

Texas Transportation Code Chapter 724 | Implied Consent — Chapter 724 of the Texas Transportation Code is dedicated to the concept of implied consent. View the full text of statutes relating to consent to taking of specimen, prohibition on taking of specimen if person refuses, and person incapable of refusal. You can also learn more about an officer’s duties for license suspension, issues at hearings, and admissibility of evidence.

Missouri v. McNeely, 569 U.S. 141 (2013) — In October 2010, Tyler McNeely was stopped for allegedly speeding and crossing the centerline. He failed field sobriety tests and refused to submit to a portable breath test, a breath test at the police station, and a blood test at a nearby hospital. The officer ordered a blood draw without McNeely’s consent and arrested him for drunk driving after the results of the blood test showed a BAC of 0.154 percent. After a trial judge ruled in McNeely’s favor to suppress the results of the blood test and the Missouri Court of Appeals stated an intention to reverse, the Missouri Supreme Court affirmed the trial court’s decision and the United States Supreme Court affirmed the judgment of the Missouri Supreme Court, “concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

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The Gracia Law Firm, P.C. | Brownsville DWI Test Refusal Defense Lawyer

If you were arrested in the Rio Grande Valley after refusing to submit to chemical testing for an alleged drunk driving offense, it is in your best interest to retain legal counsel as soon as possible. The Gracia Law Firm, P.C. represents residents of and visitors to communities throughout Hidalgo County, Willacy County, and Cameron County.

Brownsville criminal defense attorney Jonathan Gracia can fight to protect your rights and help you achieve the most favorable resolution to your case with the fewest possible consequences. Call 956-504-2211 or submit an online contact form to have our lawyer review your case and discuss all of your legal options during a free initial consultation.


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