In Texas, the answer is a pretty clear “no” (although the prosecutors will argue that it is).

I’ve written before on the legal theory called “consciousness of guilt”, and in some instances, it makes sense.  However, when it comes to refusing to provide a breath or blood sample after a DWI arrest, the theory is logically useless.

In Texas, you are only asked to provide that evidence after you have already been arrested. After you have been arrested. And you won’t be let go even if the result is under .08 BAC.

When folks blow “under the legal limit”, the State proceeds on the alternate theory that you had lost the normal use of your mental and/or physical faculties – despite being under the “per se” limit of .08.

So, you’ve been arrested and you will be charged with DWI, no matter your response to “Will you take a breath test?”

If you blow over the per se .08 BAC limit, you have just made it more likely that you will be convicted. If you blow under, you don’t get to go home. You are booked into jail and prosecuted anyway.

When you think about it that way, why would anyone submit (unless they’ve literally had nothing to drink in the last twelve to twenty four hours)?

Given the above scenario, isn’t refusing to take the intoxilyzer actually evidence that you have not lost the normal use of your mental faculties?