November
5
2014

There is confusion around the consequences of refusing to submit to a blood or breath test when pulled over for suspected drunk driving by a law enforcement officer in the state of Texas. This is, in part, because of the legal doctrine of implied consent.

In Texas, if you are lawfully arrested by an officer possessing probable cause that you have been driving while intoxicated, then you impliedly consent to having your blood and/or breath tested to determine the alcohol concentration present in your system, regardless of whether or not you actually consent. Implied consent, in other words, is a legal fiction that facilitates accurate testing of what, in the absence of scientific testing, would sometimes be a troublesomely subjective condition. This subjective state is intoxication. The road to, and features of, drunkenness vary from person to person, gender to gender, size to size, and age to age. Blood and/or breath testing are currently the only scientific ways of determining whether one’s alcohol concentration exceeds state limits for drivers.

Lawful Arrest Requires Probable Cause

Remember, the above criteria pertains to an arrest – not simply a pull-over. For the arrest to be lawful, the officer must have probable cause – a legal term meaning “reasonable suspicion.” The requirement of probable cause for an arrest to be lawful goes all the way back to the 4th Amendment of the U.S. Constitution, which prohibits unreasonable searches and seizures or persons or property. In this context, reasonable suspicion might derive from evidence of swerving, erratic variance in speed, and, obviously, visual confirmation of driver drinking alcohol while driving.

After making a lawful arrest, the arresting officer is required to inform the arrestee orally and in writing that refusal to take a blood or breath test may be used as evidence against the arrestee in court, and will result in an automatic 180-day driver license suspension. If, after receiving this information, you withhold actual consent, the officer will direct you to sign a statement confirming that you were informed of the consequences of refusal, and then confiscate your driver license. You will be issued a 41-day temporary permit, and have an opportunity to challenge the suspension of your license. However, this process requires a hearing in which you must prove that the officer lacked probable cause in arresting you for driving while under the influence.

Proving the absence of probable cause is a difficult task best left to an experienced Texas DWI attorney. This is especially the case because a failure to prove the absence of probable cause will result in the full 180-day suspension for first-time offenders, a 2-year suspension for repeat offenders, as well as other fines and penalties.

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