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Implied consent and no-refusal DWI

Your legal rights during a traffic stop are always on the line. If you are not aware of the limits to which law enforcement can go to gather evidence of your guilt, particularly regarding the suspicion that you have been drinking alcohol, you may unwittingly surrender important rights.

One area in which this commonly happens is when police ask you to submit to a blood alcohol test to determine how much alcohol you have consumed before getting behind the wheel. The legal limit for blood alcohol concentration in Texas and most states is .08, but do you know if or when you have the right to refuse to submit to the test?

Getting around implied consent

Implied consent laws mean that in exchange for the privilege of driving in Texas, you give consent for police to conduct a BAC test to gather evidence of your impairment after they arrest you under suspicion of driving under the influence. This does not include portable roadside tests or any tests police ask you to take before placing you under arrest. After your arrest, you are obliged to submit to a breath test. However, the following facts may be of interest if you are ever in this situation:

  • Despite implied consent laws, police cannot force you to take a chemical blood or breath test after your arrest.
  • If you refuse, the officer will explain the consequences, which include the automatic suspension of your license and the potential for jail time if a court convicts you of DWI.
  • Some drivers are willing to take a chance on these consequences rather than surrender evidence that their BAC is potentially over the limit.

In many cases, the gamble pays off, and drivers may avoid serious penalties for DWI charges because prosecutors do not have that key piece of evidence in a .08 BAC.

No-refusal

The frequency of this happening has resulted in no-refusal DWI enforcement. Since you may not refuse a search warrant, police typically seek such a warrant to draw blood from someone who refuses to submit to a BAC test. However, this time-consuming process often means the person's BAC level may drop considerably before the warrant arrives.

During no-refusal periods, such as holidays or other events like the upcoming football championships, judges are on-call to issue electronic warrants directly to the phones of police. Texas police then have authority to take a sample of your blood, even if it means using force to do so. If you find yourself in such a situation, you may wish to seek the advice of someone who can inform you of your rights and work to protect them as you go through the process of dealing with a DWI charge.

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