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What is implied consent, and how can it affect my case?

On Behalf of | Jan 25, 2022 | Criminal Defense |

Getting arrested for a DWI in Texas is serious and can have a major impact on a person’s life. A conviction for drunk driving remains on a person’s record, which may prevent them from getting a job or keeping the one they have. Depending on the circumstances, jail time and stiff fines can make life even more complicated, and a license suspension makes many daily activities almost impossible.

In spite of what some Texans may have heard, when law enforcement pulls someone over, it doesn’t necessarily make sense to resist the officer’s attempts to get them to comply with a breath or blood test. There are laws in place that will make driving restrictions even more severe if this happens, and those penalties will begin immediately.

What are the consequences of refusing a BAC test?

While the number of suspected drunk drivers who refuse to take either a breath or blood test varies between states, the NHTSA estimates that, nationally, more than one in five refuse to comply. Such a test checks on the blood alcohol concentration (BAC) of the suspect to determine if they were driving when they were legally drunk. In Texas, the BAC limits for drivers are:

  • .08% for drivers who are 21 years of age and over
  • .04 % for commercial drivers
  • Zero tolerance for minors

Under Texas implied consent laws, an officer with probable cause may arrest a suspected DWI driver and then decide on either a blood or breath test to check the individual’s BAC level. The suspect may also choose their own medical professional to administer the test if it is within two hours of the arrest. If the individual refuses to take the test, the officer may suspend their license immediately for:

  • 180 days for a first offense
  • 2 years for repeat offenders

Implied consent

Under implied consent laws in every state, a driver’s license is a permit that allows a driver to operate a vehicle on a public road, which also means abiding by the laws that govern public roads. Law enforcement officers, called officers of the peace, enforce traffic laws, which may include requiring a driver to submit to a BAC test. When a driver goes out on the road, they are giving implied consent for the officer to do this.

In Texas, the officer must have probable cause to arrest a suspected drunk driver, which is why they rely on observation of the suspect or the results of sobriety or breathalyzer tests to gather enough evidence to establish this. The individual can refuse these tests, thus forcing the officer to look for telltale signs of impairment, such as bloodshot eyes, slurred speech and other behaviors, to determine probable cause.

It is important to remember that it is possible to refuse to submit to a test before arrest, but the consequences of refusal after arrest are immediate and harsh. It is possible to build a strong case that can waive or minimize harsh penalties, but changing the outcome of a conviction will require knowledge of your legal rights and how the legal system works.