The Basics of Implied Consent Law
Implied Consent Law is a concept outlined in the Texas Transportation Code Section 724.001 – 724.051. It basically states that whenever a person operates a motor vehicle in the State of Texas, that person gives their consent to provide a specimen of breath or blood for chemical analysis if they are arrested for violating one or more of several DWI statutes. That’s the gist of it. Of course, there’s a lot more to this law than just that simple sentence. The legislature has carved out an entire chapter to implied consent law. And in that chapter you will find additional detail about breath testing and blood draws in DWI cases.
The first thing to know about this law is that it only applies to persons who are arrested for Driving While Intoxicated or similar offenses. If you drive on the roadways in Texas, you are not consenting to provide a blood sample for analysis into every possible crime. There are hundreds of crimes listed in the various chapters of the Texas Penal Code and the Texas Transportation Code. Texas law only says that DWI suspects are presumed to have given their consent to a blood or breath specimen analysis. This only applies to certain offenses and not to every possible criminal offense. In particular, if you are wrongfully arrested on a DWI charge that is later dropped or a Not Guilty verdict is returned by a jury , you could have grounds to obtain a dismissal of the State’s request for a blood specimen.
A second thing to note about this law is that all of the various laws that the legislature has enacted addressing implied consent are written and designed to be one-sided. What I mean by this is that the law only creates a presumption of consent if the sample is taken under the circumstances outlined in the statute. But it does not require the law enforcement agency to obtain that sample if they do not want to. Meaning that the highway patrol, local police or county sheriff may, at their discretion, simply decline the opportunity to request a blood or breath sample. We are not talking about a constitutional right to a blood or breath sample here. The right against unreasonable searches and seizures only requires police to obtain a search warrant upon probable cause to believe a blood specimen is needed from a DWI suspect. Once a warrant is obtained and signed by a magistrate, the cop has a legal right to force you to give a blood sample. Conversely, if they fail to get a warrant and still get a specimen of blood, it may be excluded from evidence at trial if the District Attorney cannot show that one of the exceptions listed in the statute applies. In other words, the law is written so that the police department can voluntarily forego the requirement of obtaining a blood or breath sample based on their own discretion.
Implied Consent Law in Texas: A Historical Overview
The concept of implied consent in Texas is not a recent addition to the state’s legal landscape. Its roots can be traced back to 1967 when the Texas legislature introduced the first drink-and-drive law, which set a blood alcohol concentration level of .10 percent for drivers. While this law required drivers to submit to intoxication testing, it also contained a clause stating that any driver who was tested while operating a motor vehicle impliedly consented to the testing simply by choosing to drive on Texas roads.
Over time, the Texas legislature amended and expanded on this original law, with major changes occurring in 1983, 1995, and 2001. In 1983, the Texas Alcoholic Beverage Code established penalties for drivers who submitted to testing and whose results revealed their blood alcohol levels were at or above the limit. Because of the penalties, the law was changed to exempt drivers from such penalties if they submitted to BAC testing. Because of this, drivers who refused BAC testing faced more severe penalties than those who submitted.
It was not until 1995 that the law again underwent significant changes. At this point, the Texas legislature adopted the Texas Administrative Driver’s License Revocation (ADLR) program, which authorized the Department of Public Safety (DPS) to impose the driver’s license suspensions for intoxicated divers arrested for DWI. Under the ADLR program, drivers whose BAC testing results established a BAC level of .10 percent or higher received an administrative suspension of their driver’s licenses. Under the old BAC testing law, these suspensions were of the automatic variety and would only occur after a conviction in criminal court.
The Texas legislature also enacted the current implied consent law in 1995, which stated that the law enforcement officer shall inform the arrested person that he or she, by accepting the privilege of operating a motor vehicle in Texas, has consented to submit to the taking of a specimen of the person’s breath or blood for analysis if the person is arrested by a peace officer who has probable cause to believe that the person was driving or operating a motor vehicle in violation of Section 49.04 or 49.06, Penal Code.
Changes were made to the Texas implied consent law in 2001, as officers were authorized to draw blood from suspects who refused to submit to BAC testing, which was meant to further enhance road safety in Austin and throughout Texas.
Legal Proceedings Under Texas Implied Consent Law
Driving under the influence or while intoxicated is a criminal offense in Texas. A law enforcement officer will generally pull over a driver under suspicion of DUI after observing erratic driving. Most officers are likely to administer a breath and/or blood test to determine whether the driver’s blood alcohol concentration is at or above the legal limit of .08 percent. There are several legal procedures required under the Texas implied consent law that drive should be conscious of.
An officer must have reasonable suspicion to stop a driver. The officer must have specific, articulable facts that cause them to suspect that someone is driving while intoxicated. The geographic location of the stop is not enough by itself to suspect someone of DUI. Observing a driver speeding, driving erratically, committing a traffic violation and smelling the odor of alcohol are examples of specific, articulable suspicions that will authorize an officer to stop a car.
Once the officer has stopped the vehicle, they have the legal right to conduct their investigation. They may ask for the driver’s name and driver’s license, ask where the driver is coming from and where they are going, and look for signs of intoxication. The driver may be asked to perform a series of tests. If the driver refuses to cooperate or is uncooperative with these requests, the officer may be forced to exercise their judgement. If the officer observes the same signs of intoxication after any refusal to cooperate as they would observe after a cooperation with testing, the officer has the right to take the driver into custody. Officers do not need a blood alcohol concentration reading to make a determination that someone is too intoxicated to drive. They can cite behavioral clues such as blood shot eyes, slurred speech, odor of alcohol and the ability of the driver to follow basic commands.
The decision to issue a blood alcohol concentration (BAC) or breath test is solely in the discretion of the officer. Most officers will administer a BAC test in virtually every case. If the driver refuses to submit to chemical testing, two things can happen. Once an officer issues a Texas DUI arrest, they are authorized to suspend the driver’s license, and they are required to do so in the event of a refusal to submit to testing. The other consequence of refusing to submit to chemical testing is that the driver has committed a criminal offense. This means that any lawyer hired to defend the driver could potentially have to deal with two cases. One for the DUI arrest and one for the refusal hearing. There are additional license suspension provisions for each of these separate offenses. It is recommended that anyone accused of driving under the influence retain both a civil and criminal attorney for the best representation.
Consequences of Refusing a Breath Test or Blood Draw Under Implied Consent Law in Texas
Refusing to blow or give blood under Texas Implied Consent law brings potential penalties that range from the administrative (such as having your license suspended) to the criminal (such as being charged with a Class A misdemeanor). These penalties may differ somewhat depending on whether you are a first-time or repeat offender. Penalties may also vary depending upon the situation, as implied consent laws differ for drivers and passengers of commercial vehicles, as well as for minors and those operating under an "Occupational License" – a limited license granted to someone whose driver’s license is otherwise suspended.
Administrative License Suspension
Upon refusal to blow or take a breath or blood test, the officer can immediately confiscate your driver’s license. This serves as a temporary license and notice of suspension, which is valid for 40 days. You will be given a form with instructions on how to apply for an Occupational License; essentially, you can apply for a limited driver’s license at the Department of Public Safety, which would allow you to drive only to and from work.
In addition to the officer’s immediate confiscation of your license, your driving privileges are also revoked by a subsequent suspension letter sent by the Department of Public Safety . Other than the suspension of your driver’s license, the Department of Public Safety will not, however, impose any further punishment for refusing to take the test. You may be convicted of the offense based upon the refusal, and you may still be punished by the courts.
Criminal Penalties for Refusal
If you refuse to take an alcohol test as requested by an officer, the officer may then arrest you for driving while intoxicated, and penalize you for failure to submit to a chemical test by charging you with a Class A misdemeanor. If you are subsequently found guilty of Driving While Intoxicated, the Court will take the refusal into account if you are then charged with a third DWI offense: your punishment will be enhanced from a Class A misdemeanor to a felony level, which carries increased fines and a longer jail sentence.
For those who have previously had their driving privileges suspended for a BAC level over .08 or a previous refusal to submit to a test, that refusal may be used against them in any prosecution and serve as a basis for a higher fine (between $1,000 and $2,000) if they are convicted of Driving While Intoxicated. Thus, frequent DWI offenders could incur progressively higher fines and jail sentences as a result of the Implied Consent law to submit to a chemical test.
Strategies for Fighting Implied Consent Law Violations
In approaching representation for a violation of implied consent laws, the objective remains consistent: prove that the client was innocent of the charges, not merely default to the verdict of guilty. With that in mind, the following defense strategies might apply.
1.) A DUI Stop Without Probable Cause
The driver may have been arrested without probable cause and evidence tainted in the process; therefore, the case should be dismissed on constitutional grounds. A DUI stop requires probable cause, which in our state may be based on something as simple as a turn signal violation. A police officer who subjectively believes someone is intoxicated is not grounds for a DUI stop on their part.
2.) Voluntary Consent Was Given
For a driver to be penalized for refusing to submit to a properly administered breath test, they must have been operating a motor vehicle in this State, meaning voluntary consent requires knowledge of the law. Penalty of refusing to submit to a breath test may not be filed against you if you did not understand the request for a breath test and you were not read the Implied Consent warning at the time.
3.) Proper Warning Was Not Given
A driver is not necessarily penalized for refusal of a breath test in this State either if they were not properly warned of the consequences of drunk driving on a Texas roadway.
4.) Failure to Administer Test Within 2 Hours of Arrest
If the test is not initiated within two hours of the alleged driving date or time, the results are inadmissible in court and the argument could be made that the stop and arrest were unlawful.
5.) The Driver Was Not Physically In Control of the Vehicle
It is important that the driver be physically in control of the vehicle, which is outlined in Texas Transportation Code Section 49.01(2). The following requirements must be met:
a) Motor vehicle is operable
b) Driver can operate the motor vehicle at any time
6.) The Breath Test Was Not Administered According to the BAC Program
7.) The Breath Test Was Not Administrated Properly
Proper administration of a chemical test for intoxication is more than having a person blow into a breath test machine to get a breath sample. Successful defense of any DWI charges will entail a complete and thorough review of the facts involved.
8.) The Individual Arrested is Not the Same Person as the One Disqualified by Implied Consent Laws
Without having a proper ID at the time of arrest and an unclear understanding of the transient driver, it may be that the driver arrested for a DWI was not the driver who was actually driving the car when the police officer made their stop.
How Implied Consent Law Affects Texas Drivers
Texas’ implied consent law has been around for years. It was instituted as a tool to help stop drunk drivers on the roads. Anyone who applies for a Texas driver’s license must agree to provide breath or blood samples for chemical testing if a police officer requests it due to reasonable suspicion. In other words, a driver must comply with the implied consent law or face suspension of his or her driver’s license. Drivers who refuse to take the tests gain nothing and only serve to make the situation worse. Even if the results of the test should be exonerating, the administrative license suspension should still occur in addition to criminal charges. Refusing to comply with the implied consent law is actually considered a criminal offense. The penalties for violating Texas’ implied consent law are significant – enough to make thinking twice about drinking and driving a wise choice . If you refuse to provide a breath or blood sample and the requesting officer determines there is probable cause to arrest you for drinking and driving, your driver’s license will be suspended for 180 days. In addition to facing an immediate suspension, any administrative license suspension will be counted as a sentence enhancer for subsequent offenses. The implied consent law is an important legal tool for closing the open loop in Texas: even if police officers can determine an individual is intoxicated, without a blood or breath test they have no evidence to support an arrest. Refusals to submit to chemical tests make it possible to prove a person was drunk despite the difficulties officers may face in gathering evidence otherwise. That’s why Texas law allows police officers to include this clause in their driver’s license applications.