Implied Consent Ruled Unconstitutional

DWI Law Implied Consent: By Tad Nelson. Board Certified Defense

Getting pulled over by a police officer for any reason isn’t much fun. If you’ve been drinking or using drugs and get stopped in Texas, the situation is much more serious. Driving while intoxicated, or DWI law, refers to the Texas rules, evidence, and penalties that apply when a person operating a vehicle on public roads is suspected of impaired driving, including breath and blood test requests, blood alcohol concentration issues, driver’s license consequences, and even jail after a conviction. The best way to avoid a DWI offense is simple: do not drink and drive, and make other plans so you can get home safely.

Yet, it still happens.

According to the Federal Bureau of Investigation, in 2011 there were over 1.2 million arrests nationwide for driving under the influence. For drivers in Texas—especially in Galveston and Houston—recent changes to DWI law can directly affect what police can demand during a traffic stop, whether a breath or blood test refusal leads to license suspension, what forensic evidence the State may try to use in court, and what legal options may be available after an arrest. Until this past November, if you found yourself in this particular situation in Texas, you would have encountered the implied consent law. However, as this report explains, that will no longer be the case, and the discussion below addresses Texas implied consent, constitutional rulings on breath and blood tests, the consequences of refusing chemical testing, forensic rules in DWI cases, and why prompt legal representation matters if you are facing a DWI charge or trying to understand your rights.

Understanding Implied Consent and License Suspension

Under the Texas Transportation Code, if a person is arrested while operating a motor vehicle in a public space, that person is deemed to have consented to having a breath or blood test to determine the alcohol concentration in the person’s body.

The test may be administered if an arrest has been made and the officer has reasonable grounds to believe the driver was operating a vehicle while intoxicated or, if the person is a minor, that the minor was operating the vehicle while under the influence of alcohol, though drivers under 21 in other jurisdictions often face zero-tolerance rules with lower blood alcohol content thresholds.

Importantly, Section 724.013 of the Transportation Code states that a person may refuse to submit to a chemical test. Critically, before a request for taking a breath or blood sample, the officer must explain orally and in writing that refusal will have specific consequences.

These include automatic driver’s license suspension for at least 180 days; in some DUI contexts, refusal can also result in a one-year suspension, and the refusal may later be used against the defendant in court. The entire list of consequences for refusing can be found at Section 724.015, and similar implied consent laws in most states tie compliance with testing rules to keeping driving privileges after a suspected violation.

However, pursuant to Section 724.012(b), there are certain situations where a breath or blood sample is mandatory. One such situation is when the person being arrested has been convicted twice previously for a DWI, and even when a driver refuses testing a warrant may be issued for a DWI blood test.

Implied Consent Unconstitutional

The challenge to the implied consent law resulted after a man suspected of driving while intoxicated refused to give a blood sample. The arresting officer discovered that the man had two prior convictions for DWI and transported him to the hospital where his blood was involuntarily drawn. The result of the chemical test showed the man’s blood alcohol content was over the legal limit and he was eventually charged with a felony DWI. Competitors often note that dui is charged with a BAC of .08 or greater, while DWI is charged with a BAC of .07 or greater, that DUI is often treated as the more serious offense, and that higher BAC levels can increase penalties, a landscape that shifted after Texas’s implied consent law was ruled unconstitutional.

In November, the Texas Court of Criminal Appeals held that the “nonconsensual search of a DWI suspect’s blood” violates the Fourth Amendment when not obtained pursuant to a warrant, though refusal evidence can still matter if a case proceeds to a criminal trial. The Fourth Amendment protects people against unreasonable searches and seizures. It is possible that the case will be appealed to the United States Supreme Court.

This all changed because of a United States Supreme Court case called Missouri v. McNeely where the U.S. Supreme Court finally chimed in and said “You can’t do that, we have a Constitution and that is no bueno!” Or something similar! For now, the implied consent law is invalid.

However, it is still possible for arresting officers to obtain samples without the person’s consent so long as they obtain a warrant first, particularly in serious cases involving DWI accidents and resulting criminal consequences.

To be completely candid, the District Attorney’s Office in Harris County understood this concept from the very beginning and blood was routinely kicked because it didn’t pass constitutional muster. I tip my hat to the way they handled the issue.

Galveston County, lead by Jack Roady as the elected DA with almost zero trial experience, on the other hand, fought long and hard for mandatory blood draws.

It was like they couldn’t read.

We had several positive rulings appealed by his office when they had absolutely no chance of prevailing! It took Galveston County over 18 months longer than Harris County to understand the concept. The warrant requirement is another issue that law enforcement doesn’t quite understand, but we’ll leave that for another blog entry. A DWI conviction can also bring collateral consequences beyond court penalties, including a permanent criminal record and job loss, especially for those facing a first-time DWI offense in Galveston County.

For a free legal consultation, call (281) 962-7626 today if you are dealing with related issues such as drinking in a parked car and actual physical control, driving while license invalid after a suspension, or serious Houston traffic violations that threaten your license.

Get Our Attorneys on Your Side

As demonstrated by this ruling, even when facing a charge for driving while intoxicated (DWI), you have Constitutional Rights and should speak with an attorney about protecting them. After a DWI arrest, it is important to consult a qualified attorney about possible defense options and to ensure that they’re not violated. Even a first offense can bring fines ranging from $500 to over $2,000, total costs that may exceed $10,000, and possible ignition interlock device requirements and related violations after conviction, as well as mandatory Houston DWI and drug education classes; penalties increase with a second offense or other repeat violations. If you were accused of DWI or any other crime involving the operation of a motor vehicle while intoxicated, contactHouston DWI lawyer Tad A. Nelson, whose DWI case results throughout Texas reflect a strong track record in defending these charges, and let us help you protect your rights.

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