Most Texans who have a drivers’ license have heard the phrase “implied consent,” but very few understand exactly what the phrase means or how it could affect their right to drive. An understanding of the law may help a person avoid a damaging decision and preserve his or her right to operate a motor vehicle.
What is “implied consent?”
Perhaps the most important part of the Texas implied consent law is the law’s very first sentence, which reads in part “if a person is arrested for an offense alleged to have been committed while the person was operating a motor vehicle in a public place . . . the person is deemed to have consented, . . . to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.” In other words, a person who operates a motor vehicle on a public road is deemed to have implicitly consented to exchange the right to drive for any right of privacy that might preclude the taking of a breath or blood sample to determine the person’s blood alcohol content and whether the person may be intoxicated. If a police officer asks a person to provide a blood or breath sample, the person must accede to the request.
The consequences of refusing
If a person refuses the request, the officer requesting the test may not force the individual to provide the sample, and the person’s driver’s license is automatically suspended. The accused driver is thereafter given a notice of the right to a hearing on the suspension. At the hearing, an administrative law judge will determine if the arresting officer had probable cause to request a sample and if the arresting officer followed the statutorily required procedures in asking for the sample. If the officer had reasonable cause and if the correct procedures were followed, the accused’s driver’s license will be suspended for 180 days; if the person has had an alcohol or drug-related offense during the past 10 years, the period of suspension will be two years.
The consequences of refusing a blood or breath test are serious and can have a significant impact on a person’s right to operate a motor vehicle in the Lone Star State. If possible, the accused driver should consult with an experienced criminal defense attorney about the consequences of refusing the request for a breath or blood sample.