The decision is much simpler now. The penalty for failing the breath test is much greater than the year long suspension of the driver's license of the accused driver for failure to submit to a breath test.

Sec. 708.102 Texas Transportation Code provides that:

(b) the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.

(c) The amount of the surcharge under this section is $1,000 per year, except that the amount of the surcharge is:

(1) $1,500 per year for a second or subsequent within a 36-month period: and
(2) $2,500 for a first or subsequent conviction if it be shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed.

You don't have to drink too many beers to hit .16 on the intoxilizer. You don't even have to be impaired. The law provides that any individual with a score of .08 on the intoxilizer is intoxicated per se. You can be sober as a judge and be intoxicated per legal definition of intoxicated if you score .08. Impairment has nothing to do with this definition of intoxication.

Taking the test puts your driver's license at risk for 3 years on a score of .16 or above. You would have to pay the department $2500 each year for 3 years after your conviction just to keep your driver's license. Don't let yourself be fooled into taking the test. You are already under arrest when it is offered so you have nothing to gain and everything to lose.

Any loss of normal use of mental or physical abilities due to the ingestion of alcohol is the other definition of intoxication for "driving while intoxicated" accusations. Determinations made by police officers on impairment are purely subjective. But why give them evidence at all? Don't take any test. Make them prove it in the courtroom before a jury of your peers.