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Second DWI Refusal

Second DWI Refusal

Despite common public misconceptions, you are legally allowed to refusal to submit to any chemical testing by law enforcement in relation to driving while intoxicated (DWI). However, it’s important to understand if you refuse to submit to DWI testing you will face an administrative penalty. If it’s your second refusal, then you’ll face an extended license suspension by the Texas Department of Safety (DPS).

Whether you refused on impulse or because you didn’t want evidence of your inebriation, it’s important you have legal counsel on your side if this is your second refusal. The Department of Safety could potentially suspend your license up to two years, and if you’re a commercial driver your professional license will be disqualified for life. You’ll also be unable to obtain a restricted license for at least 180 days while your license is under suspension if it’s your second refusal.

Second DWI Refusal Lawyer, Houston | Harris County, TX

Were you recently asked to comply with DWI chemical testing by law enforcement and refused? Is this your second refusal in the state of Texas? If so, it’s imperative you seek a Houston DWI defense lawyer as soon as possible. Your license could be suspended for up to two years due to your refusal, and you may still face DWI charges on top of it all. An experienced attorney can use their resources, skills, and knowledge of the legal system to fight your suspension and ultimately your criminal charges.

Call Matthew Horak at Horak Law to speak to a seasoned criminal defense lawyer with over 50 criminal trials under his belt. As a former prosecutor, he thoroughly understands how to challenge a DWI refusal successfully as well as develop a sturdy defense for possible criminal charges. Set up your first consultation with him today by calling our office at (713) 225-8000.

Horak Law is located in Houston and The Woodlands, Texas.

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Is a Refusal the Same as a DUI?

The short answer is no. A refusal and DWI are two separate law violations that yield different outcomes. Driving while intoxicated (DWI) is crime under the Texas Penal Code Section 49.04. The offense carries criminal consequences including time in jail, conviction fines, community service, participation in rehabilitative program, amongst other sentencing conditions. A refusal, while obviously related to the crime of DWI, is considered an administrative law violation.

A DWI refusal will not result in criminal penalties but could instead lead to an administrative penalty. That is because it’s considered an administrative violation of Texas’s implied consent laws under Penal Code Section 724.011. Under this section, the law establishes that any person using Texas roadways is implicitly agreeing to submit to DWI chemical testing. Violation of this law will result in an administrative license suspension instead of jail time or conviction fines.

Although a refusal is not the same as DWI, that doesn’t mean you won’t face charges if you refuse testing. In fact, officers will tend to arrest drivers who refuse testing because they see the refusal as reasonable suspicion of guilt. The refusal could also be utilized against you in court by the prosecution if need be. What’s important to remember though is that drivers who refuse testing have no scientific evidence of their intoxication in court, which can be extremely important to the outcome of a DWI case.

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Second DWI Refusal Suspended License

If you refuse to comply with chemical testing for DWI by law enforcement, you’ll face an administrative penalty in the form of a license suspension. The suspension will be extended if you have a prior DWI on your record or if you have a prior refusal. The length of the suspension will depend on your age and if you’re a commercial driver.

Non-commercial drivers over the age of 21:

  • Up to 2 years for a second or subsequent refusal

Underaged drivers under the age of 21:

  • Up to 2 years for your second or subsequent refusal

If you’re a commercial driver and this is your second refusal, your commercial driver’s license will be disqualified for life. So not only will you face an administrative penalty, but you will also lose your livelihood. It’s also important to remember that Texas has a zero-tolerance policy for underaged drivers.

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What is the Texas No Refusal Policy?

During the holiday season, drinking and driving offenses go up dramatically in Texas. So, law enforcement intended to decrease the amount of DWIs during the holidays by implementing “no refusal” programs. The program allows law enforcement to obtain a bio sample for BAC testing despite the fact the driver refused to comply.

Under the “no refusal” program, law enforcement officers can electronically request a search warrant for a BAC test. Judges are on call and review affidavits late at night so officers can legally require the driver to submit a breath or blood sample. They may even have nurses available at the station ready to draw blood samples if a breathalyzer isn’t applicable.

If a judge issues out a warrant for you to submit a blood sample, refusing is not an option. Refusing a court ordered blood test is actually a crime. If you choose to willfully refuse a court ordered test, you may face time in jail and large conviction fines.

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How to Win a Texas Refusal Hearing

The administrative and possible criminal penalties of refusing a DWI chemical test can feel overwhelming. However, you have options. You can challenge your license suspension with an experienced criminal defense attorney with extensive practice contesting refusals. There is only a limited time you can do this unfortunately. You must file a request for an Administrative License Revocation Hearing within 15 days of your refusal.

At the hearing, your attorney can provide evidence as to why the suspension shouldn’t be applied. They can cite legal reasons why the stop was unlawful or point out inconsistencies/issues with the police report or the stop itself. What defense will be used to challenge your suspension will depend on the facts of your case.

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Additional Resources

Administrative License Revocation (ALR) Program – Visit the official website of the Texas Department of Public Safety (DPS) to learn more about ALR hearings. You can access the request form, pay reinstatement fees and learn about restricted licenses.

Texas Implied Consent Statute – Visit the official website of Texas Legislation to learn more about their implied consent laws. Access the website to regulations, procedures for law enforcement and what to do if a person is incapable of consent.

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Houston DWI Refusal Attorney | Harris County Drunk Driving Lawyer

If you or someone you know has refused DWI testing for a second or subsequent time, call Horak Law. Matthew Horak at Horak Law has spent years defending Texas residents of DWI including refusals. He can utilize his extensive resources, practice experience, and skills for your case so you can ultimately maintain your right to drive. He can also develop a sturdy defense plan tailor made for your DWI if you’re criminally as well.

Call Horak Law today at (713) 225-8000 to set up your first consultation today.

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