Implied Consent in Texas

August 16th, 2016 by Tad Nelson in DWI

If you have been arrested on suspicion of DWI in League City or Galveston, the first thing that police will likely do is ask you to submit to a blood or breath test. Texas, like most states, has an “implied consent” law that imposes certain penalties if a person refuses to submit to such tests. It is important you understand these penalties, as well as the limits of what the police can force you to do.

What Is “Implied Consent”?

The Texas Transportation Code provides that a person “is deemed to have consented” to a blood or breath test if he or she is arrested “for an offense arising out of acts alleged to have been committed while the person was operating” a motor vehicle or watercraft while intoxicated. In plain English, if a police officer has reason to believe that you were driving drunk, the officer may request a blood or breath sample as evidence to prove you are legally intoxicated. The law presumes you consent to such tests unless you sign a statement to the contrary.

The problem is, if you refuse consent, the law imposes serious consequences. The police officer who requested the test is required to immediately take your driver’s license and issue you a temporary driving permit that is only good for 41 days. Within 15 days of the suspension, you can request a hearing before the Texas Department of Public Safety (DPS) to challenge whether or not the officer had “reasonable suspicion or probable cause” to arrest you for DWI in the first place.

If the DPS rules in your favor, your license will be restored. But if the DPS agrees with the officer, then your license will be automatically suspended for 180 days. This suspension is separate and apart from any criminal prosecution you may face for the original DWI.

Does Implied Consent Violate My Fourth Amendment Rights?

The Fourth Amendment to the U.S. Constitution protects all of us from “unreasonable searches and seizures.” This means that absent exigent circumstances, the police may not search us without first obtaining a warrant from a judge. These constitutional protections also apply to blood or breath tests.

This means that under normal circumstances, if you are stopped and arrested on suspicion of a DWI, the police cannot forcibly take a blood or breath sample if you have refused consent. There are multiple exceptions to this rule. For example, if another person dies in an accident believed to be caused by a DWI, the policy may take a blood or breath sample without the person’s consent. But in general, any evidence gathered by the police from a non-consensual test is inadmissible in court.

This is only a brief overview of how the implied consent law works in Texas. If you have been arrested or accused of DWI and need to speak with an experienced Houston DWI attorney about your rights under the law, contact the Law Offices of Tad Nelson & Associates at (409) 765-5614 right away.  

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