By: Mark Diaz
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Implied Consent in Texas and How it Can Affect Your Criminal Case
Texas DWI Laws
Even if you cannot recite the specifics, you know that Texas laws on driving while intoxicated (DWI) are harsh. You could be charged if you are operating your vehicle (or in other words, driving or any other action that enables the car to function) in violation of the statute. Police may arrest you:
- If your blood alcohol concentration (BAC) was in excess of .08 percent, as measured by a legally compliant chemical test.
- When you do not have normal use of your mental or physical capabilities, according to the subjective impressions of arresting officers.
After an arrest, you could be subjected to administrative penalties that impact your driver’s license. Because drunk driving is also a criminal offense, there are sanctions if you are convicted of DWI. A first-time offense could lead to jail time and fines, and the severity of the punishment increases with subsequent convictions.
Many motorists assume that the best way to fight DWI charges under such circumstances is to simply refuse to give the prosecution what it needs to convict: a blood, urine, or breath sample. Not surprisingly, lawmakers anticipated this move and responded by enacting Texas’ implied consent statute. Refusing to provide a specimen can lead to criminal charges in addition to drunk driving.
If you were arrested for DWI and refuse to blow or provide another sample for chemical testing, it is critical to retain a DUI defense lawyer in Galveston for assistance with the complicated legal concepts. A summary will also help you understand implied consent in Texas and how it can affect your criminal case.
Texas Implied Consent Overview and Special Considerations
Every US state has a law that presumes motorists agree to a chemical test under certain circumstances, making consent to providing a breath or blood sample a condition of being able to exercise the privilege of driving.
In Texas, the implied consent law applies whenever an officer makes an arrest based upon probable cause that the driver is intoxicated by alcohol or controlled substances. Refusing to submit to testing is a violation of the implied consent law, punishable as described below.
There are a few factors to note about the application of the statute:
- Law enforcement must first have a reasonable suspicion to pull you over for drunk driving, such as for a violation of traffic laws. Then, officers must have probable cause to arrest you for DWI. It is only after an arrest that your consent to testing is presumed.
- Police cannot force you to take a blood or breath test. But, your refusal will trigger potential penalties to your driver’s license, even though officers must respect your refusal.
- Once under arrest and law enforcement seeks a chemical test, police must warn you of the consequences of refusing to provide a sample.
Law enforcement has the ability to obtain a search warrant for a person’s blood essentially forcing a motorist to provide a sample. While this can happen in any DWI case, there are instances in which a search warrant is almost a certainty, such as when the driver:
- Caused an accident that led to serious injury or death.
- Was previously convicted for causing a DWI accident that led to death or injuries.
- Has two or more prior convictions for drunk driving.
- Was convicted of DWI with a child in the vehicle.
How Implied Consent Works in a Texas DWI Stop
With this summary of the law in mind, you can better understand its application by reviewing the timeline of a typical encounter with police.
DWI Stop: If officers observe you operating your vehicle in a way that makes them suspicious about drunk driving, they have grounds to pull you over.
Encounter with Police: After pulling you over, officers will assess your condition to determine if they have probable cause to make an arrest. Examples of factors that support probable cause include:
- Bloodshot eyes, slurred speech, and related physical traits.
- Impaired gestures and movements, such as difficulty getting out your driver’s license and insurance information.
- Poor performance on standardized field sobriety tests, such as the Horizontal Gaze Nystagmus, the Walk-and-Turn, and the One-Legged Stand.
Portable Breathalyzer Tests: In some cases when police are on the verge of having probable cause for your arrest, they may request that you submit to a breath test on a portable breathalyzer device. This situation is NOT covered by Texas’ implied consent law, so officers cannot force you and there are no consequences for refusal. However, from a practical standpoint, the results of the portable breath test are not admissible in trial but your refusal may be used as evidence of your guilt.
DWI Arrest: Once under arrest, officers must take you to a controlled environment to conduct an approved chemical test of your blood, urine, or breath; typically, this will occur at a hospital or the police station. When seeking a specimen from you, police are required to inform you about the Texas implied consent law and the consequences for violating it with your refusal.
Consulting with Counsel: You have the right to speak to your criminal defense attorney in Galveston at any point along the timeline of a DWI arrest; however, there is no requirement that you be allowed to consult with a lawyer before taking the test. In other words, you should absolutely contact legal counsel immediately, because the result of a chemical test will NOT be disturbed if you do not exercise your right.
Penalties for Refusal to Take a Chemical Test
Texas implied consent law falls under the Transportation Code, so a violation affects your driving privileges; unlike a DWI that carries both administrative and criminal penalties, a refusal is not a crime. With a first-time refusal, your driver’s license will be suspended for 180 days; subsequent incidents will result in a suspension of your driving privileges for two years.
The tricky issue with implied consent laws is that your refusal could still lead to a conviction for drunk driving, despite the fact that police do not have evidence of your BAC. Recall that you could face DWI charges for operating your vehicle while impaired by alcohol or drugs.
The police can testify regarding a driver’s intoxication based upon their subjective opinion, which may be sufficient for a drunk driving conviction. In such a case, you face the driver’s license suspension designated by the implied consent law AND the sanctions for DWI:
- A first-time DWI is a Class B Misdemeanor, so you face a minimum incarceration term of 72 hours and a fine.
- A second DWI is a Class A Misdemeanor, for which you could be sentenced to 30 days to one-year imprisonment.
Defenses and Strategies for Leveraging Implied Consent
The penalties for refusing to provide a breath or blood sample are serious, but you must also balance the sanctions against what you face if convicted on drunk driving charges. Plus, it is also necessary to consider the defenses available under both implied consent and DWI laws. Your criminal defense attorney in Galveston will advise you on options, but keep the following points in mind:
- If you do provide a specimen after being arrested for DWI, you are allowed to obtain another chemical test from a health care provider of your choosing. In some cases, this may be an advantage for showing discrepancies in the testing equipment used by law enforcement.
- You still have ways to contest your BAC. A breath or blood test must be conducted in a scientifically proper manner and the machines that ultimately test for alcohol must be in compliance with regulations regarding calibration, maintenance, inspections, and manufacturer’s warranty.
- Another strategy for fighting BAC results is by exposing compliance issues related to the operator of the breathalyzer or other machine. The law enforcement administering the test must have proper, up-to-date credentials established by law.
- The penalties for a first-time DWI are severe, but Texas does allow for a process termed deferred adjudication in drunk driving cases. If you qualify, you will enter a guilty plea to the charges and the prosecutor will recommend that the court put you on probation. Once you complete the terms set by the judge, the charges are dismissed. No conviction appears on your criminal record. Additionally, you may be eligible for a non-disclosure which would seal the record of this incident from the public and private entities. However, it can still be used against you if you are subsequently arrested for drunk driving.
- In some DWI cases, it may be possible to work out a plea bargain with the prosecution. You might benefit from the charges being reduced to a “wet reckless,” which is essentially reckless driving. The offense is considered an unclassified misdemeanor, punishable by up to 30 days in jail, a maximum fine of $200, or both.
Discuss Your Options with a Criminal Defense Lawyer in Galveston
It is useful to review basic information on implied consent in Texas and how it can affect your criminal case, but in-depth knowledge and extensive experience are essential for fighting the charges.
For more information on how Criminal Defense Attorney Mark Diaz advocates on behalf of individuals in Galveston County and Greater Houston, please call (409) 515-6170 to set up a case evaluation. Once we review your circumstances, a Texas criminal defense lawyer can advise you on strategies and next steps.