Refusal to Submit

The prosecutor will often assume the worst if a person purposely and visibly tries to hide something. In Texas, the courts have found that the driver's consciousness of intoxication is a legitimate deduction if the driver refuses to blow into the breath test machine.

At trial, the prosecutor will often attempt to argue that the person arrested for DWI refused to submit to a breath, blood or urine test, and that evidence of the refusal indicates that the person knew they were guilty of DWI.

The officer must inform the defendant orally and in writing of the consequences of a refusal. If the warning is not given, then any evidence of the alleged refusal can be suppressed by the court. For this reason, in many of these case for refusing DWI chemical testing, the criminal defense attorney will file a motion to exclude any mention of the words "refusal" when the statutory rules were not followed or the refusal didn't really occur.

Attorneys for a DWI Refusal in Fort Worth, TX

If you were arrested for DWI involving a refusal to submit to a breath, blood or urine test in Fort Worth, Texas, or the surrounding areas in Tarrant County, then contact an experienced driving while intoxicated (DWI) lawyer at Law Offices of Richard C. McConathy.

Our attorneys can also help you fight to invalidate the suspension of your driver's license at an ALR administrative hearing. If you were accused of refusing to submit, we can also help you appeal an adverse ruling at the ALR hearing to the county court at law for the reinstatement of your driver's license.

In your case, an experienced criminal defense attorney can show why your alleged refusal was not an indication that you thought you were impaired or intoxicated. Most jurors understand that an innocent person might decide to refuse to submit to a breath test, blood test or urine test depending on the circumstances presented to that person at the time of the request.

Call (817) 422-5350 today.


Consequences of the Refusal to Submit to a Breath Test in Tarrant County, TX

If you refuse to take the breath test after a DWI arrest, the arresting officer can start the process for your driver's license to be suspended for 180 days for a first offense or two years for a second offense. The refusal to submit to a breath test or a blood test can also result in an automatic twelve (12) month disqualification for individuals with a commercial driver license (CDL).

To be legally considered a refusal, the arresting officer is required to tell you and give you a notice in writing that a refusal can be used against you in court and can result in a license suspension (often called the implied consent warning).

If you refuse the breath test after receiving the proper implied consent warning, then the officer will ask you to sign a statement saying that you were warned of the consequences of the refusal. The officer will then seize your driver's license and temporary permit that is good for 41 days. You can request a hearing within 15 days to challenge the suspension of your license. If you do not request a hearing or if you fail to prove that the officer had no reason to believe that you were driving drunk, your license will remain suspended for 180 days.

After a DWI refusal, you only have 15 days to request a hearing to challenge the administrative suspension of your driver's license in Tarrant County. If you do not request the hearing or win the hearing, then your driver's license will be suspended for 180 days and the administrative finding that you were DUI will remain on your driving record for much longer.

If you have an essential reason to drive then you can petition the court in Tarrant County, TX, for an occupational driver’s license. In most cases, you are only allowed to drive for up to four (4) hours a day, though you may also petition the court for more hours.

Keep in mind that if you had submitted to the breath test on the Intoxilyzer machine and blew over the legal limit of .08, then you would still be facing an administrative suspension that would last for 90 days instead of 180 days.


Refusal and the Fifth Amendment Right Against Self-Incrimination

Why is the evidence of a refusal admissible when the defendant has rights under the Fifth Amendment right against self-incrimination? In many ways, the case law in DWI refusal cases acts as an exception to the normal constitutional requirements. As explained by the court in Dudley v. State, 548 S.W.2d 706, 707 (Tex.Cr.App.1977):

[I]f a communication, written, oral, or otherwise, involves an accused's consciousness of the facts and the operations of his mind in expressing it, such is testimonial and communicative in nature. A defendant's silence or negative reply to a demand or request by an officer made upon him while under the necessary compulsion attendant with custodial arrest, which demand or question reasonably calls for an immediate reply by the defendant, is clearly a tacit or overt expression and communication of the defendant's thoughts ....

This reasoning way addressed by the United States Supreme Court when it specifically ruled that evidence of a defendant's refusal to submit to a blood-alcohol test is admissible at trial. In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the court noted that it had already held that a blood test was “physical or real” evidence and was, therefore, unprotected, because the Fifth Amendment only prohibited a state from compelling “communications” or “testimony.” See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

The court further noted that the constitution simply forbids any compulsory revealing or communication of an accused person's thoughts or mental processes but found no compulsion existed in these cases.

The reasoning of the court in Neville is that an act of refusal after a lawful request by a police officer is not coerced. Therefore, it is not protected by the Fifth Amendment.


DIC-24 Statutory Warning under Section 724.015

Under § 724.015, before requesting a person to submit to a breath, blood or urine test, the officer is required to inform the person orally and in writing that:

  1. if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent prosecution;
  2. 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;
  3. 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;
  4. 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, 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;
  5. 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, Penal Code, the person may be subject to criminal penalties less severe than those provided under that chapter;

Under § 724.015(6) 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 in the state of Texas. 

Under § 724.015(7) 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, TX, a written demand, including a facsimile transmission, or a request in another form prescribed by the department for the hearing.

An experienced DWI defense attorney in Fort Worth, TX, can help you appeal the administrative suspension of your license by requesting an administrative hearing with the DPS as provided in § 724.041(a). At the hearing,  your attorney can argue all of the reasons that a refusal to provide a breath, blood or urine sample did not occur.  


DPS Administrative Hearing in a DWI Refusal Case

A refusal triggers on “on the stop” administrative license suspension. A hearing is held before an administrative law judge (the “ALJ”) who can either invalidate or uphold the suspension. If the ALJ does not invalidate the suspension, you can challenge the ALJ's suspension in the county court at law. 

After a DWI arrest, the arresting officer will often take the accused to the police station for the reading of the DIC–24 statutory warnings as required by Tex. Transp. Code Ann. § 724.015.


Petition for Appeal from an Adverse ALJ's Decision

If the administrative law judge (ALJ) makes an affirmative finding on each of these issues, the ALJ will issue an order authorizing the DPS to suspend the individual's driver's license. The suspension order appealable to the trial court. Id. § 724.047.

As provided in Tex. Transp. Code Ann. § 524.041(b), after an adverse ruling the ALJ's decision can be appealed by filing a petition of appeal with the county court at law in Tarrant County, TX. The judge in the county court at law can grant the petition and reversed the suspension of his license. If an adverse ruling occurs at the county court of law level, an appeal can be filed challenging the order of the county court at law. 

A person whose driver's license is suspended following an administrative hearing is entitled to judicial review of that decision. Tex. Transp. Code Ann. § 524.041. When reviewing an administrative suspension, the standard of review is the substantial evidence standard. Tex. Gov't Code Ann. § 2001.174. When applying this standard, a reviewing court may not substitute its judgment for that of the agency. 

Nevertheless, the standard for the judicial review of a decision by an ALJ under section 2001.174(2)(E) requires a reviewing court to reverse an ALJ's decision if the ALJ's findings are not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole. See TEX. GOVT. CODE ANN.. § 2001.174(2)(E)


Requirements to Uphold a Suspension in a DWI Refusal Case

Chapter 724 of the Texas Transportation Code (the Code) explains the process for the suspension of a person's driver's license after a DWI arrest when the person refuses to submit to the taking of a breath or blood specimen at the request of a police officer. See TEX. TRANS. CODE ANNN. §§ 724.000–724.064. While the Code authorizes the arresting officer to request a specimen of either breath or blood, section 724.035 of the Code permits the DPS to suspend a person's license if the person refuses “the request of a police officer to the taking of a specimen.” Id. § 724.035.

To uphold the suspension of a driver's license in a refusal case, a reviewing ALJ must find that the DPS proved four elements by a preponderance of the evidence at the administrative hearing:

  1. the officer had reasonable suspicion or probable cause to stop or arrest the person;
  2. the officer had probable cause to believe that the person was operating a motor vehicle in a public place while intoxicated;
  3. the officer arrested the driver and asked him to submit to the taking of a breath specimen; and
  4. the driver refused to submit to the taking of a specimen on request by the officer. 

See Tex. Transp. Code Ann. §§ 724.042, 724.043. 

When determining whether the driver refused, the refusal to provide a blood or breath specimen for testing does not have to be expressly stated by saying the words “no” or “I refuse.” Under § 724.032(a), “[i]f a person refuses to submit to the taking of a specimen, whether expressly or because of an intentional failure of the person to give the specimen, the peace officer shall: (1) serve notice of license suspension or denial on the person ….”). 

As explained in Tex. Dep't of Pub. Safety v. Fecci, 989 S.W.2d 135, 140 (Tex.App.-San Antonio 1999, pet. denied), “a defendant need not give the officer a definite ‘no’ about whether or not he will take the test.”). Instead, if the suspect gives a response that evades or ignores the legal request of an officer for such a test may be considered a refusal to submit. 

Under Tex. Dep't of Pub. Safety v. O'Donnell, 998 S.W.2d 650, 655 (Tex.App.-Fort Worth 1999, no pet.), the court determined that the ALJ had substantial evidence to support the determination that O'Donnell had refused to submit a blood specimen where she had consented to the test, then refused, and then allegedly consented again after being calmed by a doctor in the emergency room. 

In Tex. Dep't of Pub. Safety v. Latimer, 939 S.W.2d 240, 245 (Tex.App.-Austin 1997, no writ), the court concluded that Latimer's response to the officer's request for a specimen, repeatedly asking to talk to his wife, could be found by the ALJ to be a refusal. 

In Ott v. Tex. Dep't of Pub. Safety, 958 S.W.2d 294, 296 (Tex.App.-Austin 1998, no pet., the court held that the conclusion of refusal was reasonable when Ott closed her eyes, stared at the ceiling, and asked for her mother in response to the officers' repeated requests.


Asking to Speak to an Attorney Isn't a Refusal

Simply asking to speak to an attorney would not normally constitute a refusal. If the officer treats such a request as a refusal, the driver should contest the administrative suspension and file a motion to exclude any mention of the word “refusal” at trial. 

The state will often argue that a criminal defendant has no right to an attorney prior to or during the administration of a chemical breath test. McCambridge v. State, 778 S.W.2d 70, 72–73 (Tex.Crim.App.1989). Also, public safety officers are not necessarily required to advise an arrestee that he has no right to an attorney's presence during the administration of the test. See Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993) (en banc).

When the person arrested for DWI makes a request to speak to an attorney, under some limited circumstances, that request may constitute a refusal to submit a specimen for testing.  For example, in Tex. Dep't of Pub. Safety v. Raffaelli, 905 S.W.2d 773, 777–78 (Tex.App.-Texarkana 1995, no writ), the court determined that the ALJ had sufficient evidence to conclude Raffaelli's insistence on giving a breath sample only in his attorney's presence was a refusal to provide the specimen.


Triggering the Administrative Suspension under Section 724.032

Under Section 724.032(a), the officer has certain duties to trigger a license suspension after a refusal to submit to a breath, blood or urine test. Under this statute, a person refuses to submit to the taking of a specimen, whether expressly or because of an intentional failure of the person to give the specimen, the peace officer shall:

  1. serve notice of license suspension or denial on the person;
  2. take possession of any license issued by this state and held by the person arrested;
  3. issue a temporary driving permit to the person unless department records show or the officer otherwise determines that the person does not hold a license to operate a motor vehicle in this state; and
  4. make a written report of the refusal to the director of the department.

Under Section 724.032(b), the director must approve the form of the refusal report. The report must:

  1. show the grounds for the officer's belief that the person had been operating a motor vehicle or watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated; and
  2. contain a copy of:
    • the refusal statement requested under Section 724.031; or
    • a statement signed by the officer that the person refused to:
      • submit to the taking of the requested specimen; and
      • sign the requested statement under Section 724.031.

Texas law requires the officer to forward to the department not later than the fifth business day after the date of the arrest:

  1. a copy of the notice of suspension or denial;
  2. any license taken by the officer under Subsection (a);
  3. a copy of any temporary driving permit issued under Subsection (a); and
  4. a copy of the refusal report.
  5. The department shall develop forms for notices of suspension or denial and temporary driving permits to be used by all state and local law enforcement agencies.
  6. A temporary driving permit issued under this section expires on the 41st day after the date of issuance. If the person was driving a commercial motor vehicle, as defined by Section 522.003, a temporary driving permit that authorizes the person to drive a commercial motor vehicle is not effective until 24 hours after the time of arrest.

Under § 724.061, a person’s refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person’s trial.

Under § 724.062, the fact that a person’s request to have an additional analysis under Section 724.019 is refused by the officer or another person acting for or on behalf of the state, that the person was not provided a reasonable opportunity to contact a person specified by Section 724.019(a) to take the specimen, or that reasonable access was not allowed to the arrested person may be introduced into evidence at the person’s trial.


This article was last updated on Friday, April 28, 2017.

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