Just Say "No" to the Breath Test in a DWI or DUI

Macy Michelle Jaggers

Written by  Pro

DUI / DWI Attorney - Dallas, TX

Contributor Level 20

Posted almost 2 years ago. Applies to Texas, 3 helpful votes



Why Should I Refuse the Breath Test?

Taking a breath test makes your case more difficult to win. Many people take the test because they trust the machine to prove that they are not intoxicated. This is a tremendous mistake. The breath-test machines used in Texas are riddled with problems and should not be trusted to give accurate results. All you are doing by taking a breath test is providing the State with more evidence against you. Don't get me wrong, a breath-test case can still be fought, and won, but it is certainly more difficult to defend than a case without a breath test.


Won't DPS Suspend My License if I Refuse the Breath Test?

Not necessarily. What an officer will do if you refuse a breath test is take your driver's license and provide you with a temporary license that expires in forty days. He can do this because Texas has what is called an "implied consent" law. This means that, when you apply for a driver's license from the State, you automatically agree to provide a specimen of breath or blood if you are arrested for a DWI or DUI. If you refuse to provide the specimen, the State has the right to revoke your license at that time. However, the law also allows you to request a hearing where you can attempt to prevent the license suspension. This hearing is called an Administrative License Revocation (ALR) Hearing. You have only fifteen days from the day you are arrested to request this hearing. If you do not request an ALR hearing within fifteen days, your license will automatically be suspended. If you do request the hearing, on the other hand, your driving privileges remain in place until the hearing.


Can I Get a Provisional License if Mine Gets Suspended?

Yes. In most cases you can get an occupational driver's license (ODL), which allows you to drive up to twelve hours a day, seven days a week. Although it is called an "occupational" license, it is not just for getting to work. This license also allows you to drive your kids to school, go to the grocery store, drive to church, and tend to other necessary personal business.


Why Do I Need an ALR Hearing if I Can Get an ODL?

First, not everyone will be eligible for an ODL. But more importantly, an ALR hearing provides the opportunity to cross examine your arresting officer before a prosecutor has a chance to prepare him. The officer will review his offense report before he testifies but will rarely watch the video or spend any time preparing for the hearing. This means there will be a lot of facts about your case that he does not remember, and he will likely testify as to what he thinks probably happened. This guesswork leads to inconsistencies with the video, with other evidence, and with future testimony. I have won DWI cases based on the testimony I have obtained from ALR hearings. They are the first, and often the most valuable, tool in your DWI defense.

Additional Resources

You can get more information about the driver's license suspension process and occupational driver's licenses by contacting the Texas Department of Public Safety at 512-424-2600 or visitng their website at http://www.txdps.state.tx.us/driverlicense.

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