Texas Implied Consent Law: What You Need to Know

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Texas is an implied consent state. This means that anyone licensed to drive in this state automatically agrees to sobriety testing if law enforcement stops them under suspicion of drunk driving. If the alcohol level in a driver's blood is over the limit according to Texas law, that driver faces arrest for driving while intoxicated (DWI), also known as driving under the influence (DUI) in many other states. There are harsh penalties for refusing a sobriety test on top of those that come with intoxication charges.

Implied Consent Law in Texas

According to Texas Transportation Code Section 724.011, a driver automatically gives consent to drug or alcohol intoxication tests when applying for a driving license. This consent covers field sobriety, chemical, and breath or breathalyzer tests. Implied consent law affects commercial drivers and drivers of motorcycles or watercraft suspected of DWI. It also applies to drivers in Texas with out-of-state licenses. The state imposes severe punishment on drivers who refuse sobriety tests on top of the penalties they may face for a DWI conviction.

Tests Covered by Implied Consent Law

According to Fort Worth DWI attorney, Andrew Deegan, chemical breath, blood and field sobriety tests are subject to the state's implied consent rule. Refusal to take these tests violates the law:

  • Chemical Breath or Breathalyzer Test: Police officers who lawfully stop a driver suspected of DWI and who can obtain an electronic warrant within two hours can compel a driver to take a breath test. The driver blows into a machine and blood alcohol content (BAC) results are instantaneous.
  • Blood Test: An arresting officer can require a driver to give a blood sample to gauge intoxication given by a medical professional.
  • Field Sobriety Test: Law enforcement may require a driver to undergo a physical examination to confirm intoxication.

A DWI suspect does not have to take the above test tests before an officer makes an arrest. However, to establish probable cause, law enforcement may request that the driver take a pre-arrest breath test or PAS, which the officer administers much in the same way as a chemical breath test. There is no penalty for refusing a PAS if a driver is above 21 years old and not on probation for another DWI. A driver's PAS test results can also serve as evidence in a DWI case.

Consequences for Test Refusal After Arrest

In Texas, law enforcement must obtain a warrant before forcing a driver to take a sobriety test. However, that driver still faces arrest and conviction for violating the consent law. Furthermore, prosecutors can use this refusal in court as evidence of intoxication against a driver. When refusing a test, drivers must sign a waiver stating they understand their conduct's repercussions. Law enforcement can force a driver to take a sobriety test in the instances of accident, injury or death.

According to Texas Penal Code section 724.035, a driver who refuses to submit to a chemical test faces these Texas DWI penalties:

  • Driver's license revocation for up 180 days.
  • Two-year loss of driving privileges if that driver has a record of drug or alcohol intoxication and driving violations within the last decade.
  • Acknowledgment that the refusal to take a sobriety test can serve as evidence in court to suggest that they hid evidence of their intoxication.

Blood Alcohol Concentration (BAC) Limit

According to the Texas Department of Transportation, the BAC limit for intoxication is 0.08 percent. However, the state considers drivers intoxicated if alcohol or drugs impact their ability to drive. The BAC limit for intoxication is 0.04 percent for a driver with a commercial license. For drivers under 21, any amount of alcohol measured via a breath test can result in a DWI charge and driver's license suspension.

For adults faced with a DWI charge in Texas, the penalties vary depending on the number of offenses. There are additional state fines from $3,000 to $6,000 depending on the sentencing circumstances. If a driver has a child passenger under 15, they face charges of child endangerment, an additional fine of up to $10,000, a jail sentence of up two years and a license suspension of 180 days. The penalties for DWI offenses are:

  • First offense:​ A maximum $2,000 fine, up to 180 days in jail with three mandatory days served, and a driver's license suspension of up to one year.
  • Second offense:​ A maximum $4,000 fine, a jail sentence of one month to one year, and a driver's license suspension of up to two years.
  • Third offense:​ A maximum $10,000 fine, a prison sentence of two to 10 years and a driver's license suspension of up to two years.

No Refusal Test Enforcement

Texas also has something called No Refusal weekends, which usually occur during periods associated with high alcohol consumption, such as New Year's Eve, the Fourth of July or Labor Day. They may also take place during major events like the World Series or Super Bowl. No Refusal is a bit of a misnomer in that it doesn't mean a driver of a motor vehicle cannot refuse to give a breath sample; its purpose is to help law enforcement reduce the amount of test refusals by speeding up the time it takes to get warrants.

During No Refusal weekends, law enforcement provides additional resources to carry out DWI laws by putting more officers in the field; having administrators available to review, sign and approve search warrants; and have more medical professionals available for blood draws. These periodic events are intended to discourage drivers from drinking while driving and to better handle those that do.