How is a Breath or Blood Test Handled if You are Pulled Over?

Texas DWI lawyer Stephen Hamilton explains how a breath or blood test is administered and how you can handle it.

Texas has an implied consent law: if you drive a vehicle on a public road in Texas, you automatically consent to submit to either a breath or blood test if stopped for DWI. This applies to out-of-state drivers as well.

Your arresting officer is required to inform you that you must submit a blood or breath sample and that to refuse to consent is breaking the law.

Now, does that mean you must submit to a breath test?

No.

Can a police officer force you to give a breath test?

No.

However, if you choose to refuse, understand there are legal consequences, especially if you hold a CDL/commercial driver’s license, and that you will be arrested on the spot. But you still have the right to refuse.

When the police stop you, they are obligated to read to you verbatim the DIC-24 statutory warning that explains what the implied consent laws are in Texas and what the penalties are for you if you refuse to consent.

Can a police officer take your blood by force? If this is your first DWI and you have no criminal record, the answer is: NO!

However, if you have two prior DWI convictions, or a child under the age of 15 was in the car with you, or if there was an accident or anyone was injured or killed in the incident, your arresting officer can legally force you to take a blood test, and do so without first obtaining a warrant.

That doesn’t mean the arresting officer is going to whip out a syringe on the spot and do it themselves though! The test must be performed under sanitary conditions by a licensed medical professional.

If you are convinced that you are not intoxicated and are subjected to a blood draw and you or your attorney have concerns about how that blood draw was administered, you are within your rights to obtain an independent sample as long as it’s performed within two hours of your arrest.