What You Refuse, and When, Shapes Everything That Follows.

When a police officer pulls you over on suspicion of DWI, you will face a series of decisions in real time, without an attorney present and without time to think through the consequences of each choice. Two of the most significant decisions involve whether to perform standardized field sobriety tests and whether to submit to a breath or blood test. These aren’t the same decision, and they carry different consequences.

Most discussions of DWI refusal treat it as a single choice: refuse or don’t refuse. The reality is more nuanced. There are three distinct scenarios that play out in DWI investigations involving refusal, and each one produces a different evidentiary picture, different license consequences, and a different defense.

At Denuna & Westbrook, PLLC, we represent individuals in all three scenarios throughout Houston and the Gulf Coast region. Understanding your unique situation is the starting point for building the right defense.

The Three Refusal Scenarios

A DWI investigation typically involves two separate opportunities to refuse: field sobriety tests and chemical testing. What you refuse, and in what combination, determines what evidence exists and what the defense looks like.

Scenario 1: Refusing Everything — Field Sobriety Tests and Chemical Testing

A driver who refuses both field sobriety tests and chemical testing gives law enforcement no physical performance evidence and no chemical test result. The officer’s probable cause for arrest rests entirely on observations made before any tests were requested: the driving behavior, the initial contact, the odor of alcohol, bloodshot eyes, slurred speech, and demeanor.

Refusing everything eliminates two significant categories of evidence. It also comes with two refusal notations in the police report and the near-certain prospect of a blood search warrant. In most Texas counties, a refusal triggers a warrant as a matter of routine. The investigation continues.

When blood is obtained through a search warrant, the warrant itself becomes one of the most significant defense issues in the case. The affidavit supporting the warrant can be examined, challenged, and tested against every other piece of evidence. A warrant that doesn’t hold up may result in suppression of the blood evidence.

The ALR consequences also apply. A DIC-25 Notice of Suspension is issued at the scene, starting the 15-day clock to request a hearing. For a first-offense refusal, the suspension period is 180 days. For a driver with a prior DWI arrest, prior refusal, or prior ALR suspension, the period increases to two years, even if the prior case was dismissed.

Scenario 2: Performing Field Sobriety Tests but Refusing the Chemical Test

This is the most common refusal scenario. The driver performs the field sobriety tests, producing documented physical performance evidence, and then declines the breath or blood test.

The field sobriety test performance becomes part of the probable cause narrative for arrest and part of the prosecution’s case at trial. How the tests were administered, what clues were noted, and whether the officer followed NHTSA's standardized procedures all become significant defense issues.

The chemical test refusal triggers the same ALR consequences as Scenario 1. The DIC-25 is issued, the 15-day clock starts, and a blood warrant follows in most cases. If blood is obtained and comes back at 0.15 or higher, a charge originally filed as a Class B misdemeanor may be enhanced to a Class A.

The defense in this scenario examines two distinct bodies of evidence: the field sobriety test administration and the blood warrant. Weaknesses in either one can change what the State is able to present at trial.

Scenario 3: Refusing Field Sobriety Tests but Consenting to Chemical Testing

Some drivers decline to perform field sobriety tests but agree to a breath or blood test. This scenario is less common but makes sense in a specific situation: a driver who is confident their BAC is below 0.08 and wants to produce chemical evidence to support that confidence, while declining to perform roadside exercises that are vulnerable to officer subjectivity and environmental factors.

Refusing field sobriety tests eliminates the physical performance evidence from the case. Officers and prosecutors can note the refusal, but they can’t document clues that were never observed. The chemical test result becomes the primary evidence. If the result is below 0.08, it becomes the primary defense. If it’s above the .08 threshold, the defense shifts to the reliability of the testing process.

This scenario carries no ALR refusal consequences. The license consequences, if any, arise from the chemical test result rather than a refusal. The 15-day ALR clock still applies if the test result is at or above 0.08, but the suspension period is shorter than for a refusal.

Field Sobriety Tests Are Voluntary

Officers are not required to tell you that field sobriety tests are voluntary, and most won't. The request to perform roadside exercises is framed as routine, and most people comply without realizing they have a choice.

Declining to perform field sobriety tests eliminates the physical performance evidence from the case. Poor performance on a Walk-and-Turn or One-Leg Stand becomes a documented part of the probable cause narrative. A refusal completely removes that documentation from the investigation.

Refusing Field Sobriety Tests Doesn’t End the Investigation

Declining field sobriety tests doesn’t stop a DWI investigation. In most cases, it results in an arrest based on the officer’s observations. Once you’re under arrest, the officer will request a breath or blood test. That request creates the second major decision point in the investigation.

If you agree to the chemical test after refusing field sobriety tests, you’re in Scenario 3. The result, not the SFST refusal, determines the license consequences. If the BAC result is at or above 0.08, the ALR process is triggered based on that result. If it's below .08, the chemical test becomes your primary defense.

If you refuse the chemical test after refusing field sobriety tests, you’re in Scenario 1. The officer issues a DIC-25 Notice of Suspension, the ALR clock starts running, and a blood warrant is likely to follow. You now have two refusal notations in the report and no chemical test result.

Refusing field sobriety tests also comes with its own consequences regardless of what follows. Officers will note the refusal in their report and may argue it contributed to the decision to arrest. Prosecutors may raise it at trial as consciousness of guilt.

What Happens After a Chemical Test Refusal

When you refuse a breath or blood test in Texas, two things happen almost simultaneously.

First, the officer issues a DIC-25 Notice of Suspension at the scene. That notice triggers the Administrative License Revocation process, a separate civil proceeding administered by the Texas Department of Public Safety focused entirely on your driving privileges. The ALR process runs independently from the criminal case, follows different rules, and moves on its own timeline. The Notice gives you 15 days to request a hearing to challenge the suspension. Miss that deadline and the suspension takes effect without a hearing.

For a first-offense refusal, the suspension period is 180 days, double the 90-day suspension for a failed test. For a driver with a prior DWI arrest, prior refusal, or prior ALR suspension, the suspension period increases to two years, even if the prior case was dismissed.

The ALR hearing is more than a license proceeding. It compels the arresting officer to testify under oath early in the case, before the criminal proceedings fully develop, creating a sworn record that can be used throughout the defense. Requesting that hearing immediately after a refusal is one of the most important steps in any DWI case.

Second, the refusal itself becomes evidence at trial. Texas allows prosecutors to introduce refusal evidence, and most do. The argument is simple and designed to land with a jury: an innocent person with nothing to hide would have taken the test.

That argument oversimplifies what actually happens during a roadside DWI investigation. People refuse chemical tests for reasons that have nothing to do with guilt. Some don’t trust the testing equipment. Others have heard that refusal is better than a high result. Many are confused, anxious, or uncertain of their rights. Some believe the stop itself was unlawful. A refusal, standing alone, is not proof of anything.

Blood Warrants Are the Current Standard, Not the Exception

No Refusal Weekends were once a targeted enforcement tool during certain holidays, when Texas counties put prosecutors and judges on standby to sign blood warrants after a refusal. Those targeted weekends are now largely irrelevant. In most Texas counties, blood search warrants follow a refusal as a matter of routine, holiday weekend or not. Officers are trained for it. Prosecutors are available for it. Judges sign them electronically within minutes.

Refusing a chemical test no longer prevents blood evidence from being collected. In the overwhelming majority of DWI cases where a driver refuses, law enforcement obtains a blood draw through a warrant before the night is over. When blood is obtained through a warrant, the warrant itself becomes one of the most significant defense issues in the case.

The Blood Warrant and How to Challenge It

To obtain a blood warrant, an officer must submit an affidavit establishing probable cause, swearing under oath to specific facts that justify the blood draw. That affidavit is not just procedural paperwork. It is a sworn statement that can be examined, challenged, and tested against every other piece of evidence in the case.

The defense is entitled to examine whether:

• The affidavit accurately described the facts of the investigation
• The officer's observations actually supported probable cause
• The stop and detention that preceded the warrant were themselves lawful
• The warrant was executed within the required timeframe
• The blood draw was conducted by a qualified person following proper procedures

A warrant that doesn’t hold up may result in suppression of the blood evidence. Without that evidence, the State's case changes considerably.

The Enhancement Issue: When Blood Results Come Back

When law enforcement obtains blood through a search warrant, the results may not be available for weeks or months. If those results come back showing a BAC of 0.15 or higher, a charge originally filed as a Class B misdemeanor may be enhanced to a Class A misdemeanor, with a higher punishment range and mandatory ignition interlock as a new bond condition.

That enhancement can arrive long after the initial arrest, changing the character of the case at a point when some defendants have already made decisions about bond, counsel, and strategy. Understanding that blood results are coming and what they might mean is part of building an effective defense from the start.

Why People Refuse and Why It Matters to a Jury

Jurors bring assumptions into the courtroom about what a refusal means. Many assume a driver refused because they knew they were intoxicated and didn't want to be caught. That assumption is exactly what prosecutors want.

The reality is more complicated, as drivers may refuse for a number of valid reasons:

• Distrust of the testing equipment or the accuracy of the results
• Prior experience with DWI investigations that shaped their decision
• Advice from someone they know about what to do if pulled over
• A belief that the stop or investigation was unlawful
• Anxiety, confusion, or the stress of the encounter itself
• Medical conditions that make breath testing difficult
• A genuine misunderstanding of their rights and obligations

None of those reasons require guilt. Getting that reality in front of a jury, clearly and without apology, is one of the most important parts of defending a refusal case.

Defending Refusal Cases in Houston

Every refusal case is shaped by what the driver refused and when. The defense starts by understanding exactly which scenario applies and the resulting evidence.

From there, the focus is the same regardless of the scenario: examine the investigation, identify where the State’s case is vulnerable, and require proof of every element beyond a reasonable doubt. That means looking at the basis for the stop, the officer's observations, the field sobriety testing if it occurred, the circumstances of the refusal, and the validity of any blood search warrant that followed.

Chris Denuna and Nick Westbrook have defended refusal cases across all three scenarios. Some clients refused all questions and tests, resulting in a blood search warrant. Other clients agreed to submit a breath test, despite refusing the field sobriety tests. Regardless of the facts, we focus on the entire DWI investigation, including the stop, law enforcement’s observations, and the warrant. A refusal doesn’t decide a case – the investigation behind it does.

Frequently Asked Questions — DWI Refusal Cases in Texas

Are field sobriety tests voluntary in Texas?

Yes. Field sobriety tests are voluntary, and officers are not required to tell you this. Declining eliminates physical performance evidence from the investigation, but officers will note the refusal in their report and may argue it contributed to the decision to arrest.

Is it legal to refuse a breath or blood test in Texas?

Yes. Texas law permits refusal. The consequences include a potential license suspension through the ALR process and the use of your refusal as evidence at trial. Officers will also treat the refusal as additional justification for arrest, particularly if they observe an odor of alcohol, bloodshot eyes, slurred speech, or poor performance on the standardized field sobriety tests.

What happens if I refuse field sobriety tests but agree to a breath or blood test?

Refusing field sobriety tests eliminates the physical performance evidence from the case. If the chemical test result is below 0.08, it becomes your primary defense. If it’s above, the defense shifts to the reliability of the testing process. There are no direct ALR license consequences from refusing field sobriety tests alone.

What happens if I refused everything, including field sobriety tests and the chemical test?

Refusing everything eliminates both physical performance evidence and chemical test evidence. However, in most Texas counties, a chemical test refusal triggers a blood search warrant. The ALR process applies, and you have 15 days from the DIC-25 Notice of Suspension to request a hearing. The warrant and the blood draw both become central defense issues.

What happens if I performed field sobriety tests but refused the breath or blood test?

This is the most common refusal scenario. Your field sobriety test performance becomes part of the probable cause narrative and the prosecution's case at trial. The chemical test refusal triggers the ALR process, as well as a potential blood warrant. If blood comes back at 0.15 or higher, the charge may be enhanced from a Class B to a Class A misdemeanor. The defense examines both the field sobriety test administration and the validity of the blood warrant.

Will I lose my driver’s license if I refused some or all of the tests?

It depends on what you refused. Refusing field sobriety tests alone does not trigger the ALR process. However, refusing SFSTs will likely result in an arrest, and once arrested, the officer will request a breath or blood test. If you refuse the chemical test, the DIC-25 is issued and the 15-day ALR clock starts running. If you agree to the chemical test and the result is at or above 0.08, the ALR process is triggered based on that result. Either way, the ALR hearing gives you the right to challenge the suspension. Missing the 15-day deadline means the suspension takes effect without a hearing.

Can police still get my blood if I refuse a breath or blood test?

Yes. In most Texas counties, a refusal triggers a blood warrant as a matter of routine. Law enforcement obtains a blood draw through a warrant in the overwhelming majority of refusal cases, often before the night is over. The warrant and the blood draw both become defense issues. The affidavit supporting the warrant, the validity of the probable cause, the procedures used to collect the sample, and the laboratory analysis can all be examined and challenged.

Can I still win my DWI case if I refused testing?

Yes. Refusal cases are defended successfully through challenges to the stop, the investigation, any field sobriety testing, the blood warrant, and the reliability of any chemical evidence the State obtained. The refusal itself is rarely where the case is decided.

Contact a Houston DWI Refusal Defense Lawyer Today

A refusal creates consequences, but it doesn’t prove intoxication. The State must still meet its burden beyond a reasonable doubt.

Denuna & Westbrook, PLLC represents individuals facing DWI refusal cases throughout Houston and the Gulf Coast region, including Harris County, Fort Bend County, Montgomery County, Galveston County, Brazoria County, and Waller County.