DWI Refusals

DWI Refusals - What is a DWI Refusal?

DWI Refusal means the chemical (breath or blood) test was refused by the driver. This will automatically result in a 180 day suspension, if it's a 1st time DWI or if any prior DWIs are more than 10 years in the past. If there are DWI priors within 10 years, the suspension is 2 years.


Austin's DWI Refusal Weekends

DWI Refusal Weekend used to mean that on specified weekends in Austin, if you refused to give breath or blood, the officer would secure a warrant and take the blood anyway. But nowadays, just about every night is No Refusal. Unless certain officers are not readily available to respond, a refusal for breath or blood will be met with a signed warrant to take a blood sample.

There is also a second Court based suspension on the DWI, if you lose the DWI (or plead), so you'll end up with a second (roughly 90 day or more) license suspension anyway! On a first DWI, it's up to the Judge to determine if those suspensions run concurrent.

Closely Related Offenses

There are several types of DWI in Texas. A First Time DWI is the most common, but if a person has a prior DWI, then the charge is more serious. A DWI Second Offense is a Class A Misdemeanor and carries more severe penalties. Likewise, having two DWI priors means the next arrest will be considered a Felony DWI.

A first time DWI where the person has a breath or blood result .015% or higher, will have the DWI upgraded to a more serious DWI offense, specifically an Enhanced DWI (Class A).

Lastly, if there is no alcohol involved, or a combination of alcohol and a narcotic, then a person could be charged with a Drug DWI. This is true even if a person is taking legal prescriptions.

If you're looking for other offenses that are related to this one, you can see more information below, or click related legal offenses.

An Attorney Needs to Ask These Questions to You!

DWI is one of the most complex areas of criminal law, mixing law, science, and forensics all into one. You need an attorney with trial experience, knowledge of the law, and the scientific knowledge of breath tests, blood tests.


Obviously everyone is different, and there may be 6 different answers to this question if you ask 10 different Austin lawyers. Generally speaking, if you've been drinking and feel that you may be near the legal limit (.08%), there's an argument to be made that you should refuse the tests -- ALL of the tests.

Put it this way: Would you prefer to have your license suspension 3 months longer, or make it more likely you'll deal with all of these DWI Consequences?

Politely but firmly ask the officer to call an attorney prior to agreeing to anything (other than providing name, license, insurance, and general non-alcohol related preliminary questions -- which includes what you ate, etc...). The officer will most likely refuse. Keep insisting, letting them know you're not comfortable with the questioning; the entire incident is being captured on video, and the more your insist you need to speak with an attorney, the better position it places you in. At some point the officer will tell you that by asking for a lawyer, you're essentially refusing. That's fine. You avoid the chemical tests and have exercised your constitutional rights. Yes, you will be arrested. Yes, you will receive a license suspension. But you've limited the amount of actual evidence against you for a DWI. If you blow and fail, you end up in jail anyway, and provide incriminating answers, probably poor FSTs on camera, and a difficult to fight voluntary breath test. The benefit? You get a license suspension for three less months.

Inaccurate Testing - Margins of Error

Lets say you had three beers or so. Lets assume, although this is questionable, that you're BAC is roughly .06% in truth, at the time of driving. Many breath tests have a margin of error of up to roughly .02% (may vary, for several reasons). This means there is a 'swing' of breath results. Your .06%, when tested by a breath machine with a .02% margin of error, could result in the machine reading either .04% or .08%. That's a big problem for you, if it's .08%. That means arrest, a criminal case, and all the consequences you'll find on our DWI Consequences page.

Should you Refuse to do the Field Sobriety Tests?

There are no statutory consequences of refusing to do the field sobriety tests -- aside from explaining the decision to a jury (or a prosecutor during negotiations). Why refuse the chemical tests, only to then do a series of gymnastic like physical balance tests? By declining to do the HGN Nystagmous Test, the Walk and Turn, and the One Leg Stand, you're limiting any evidence that WILL be used against you later.

Unlike the chemical tests (breath, blood), an officer is not required to tell you that refusal of the FSTs is allowed. In fact, they may phrase it as a command, such as "I need you to do this test," or "I'm going to look into your eyes, hold still." But they are not mandatory by law, meaning there is no statutory consequence for refusing.



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