Getting pulled over by a police officer for any reason isn’t much fun. If you’ve been drinking and get pulled over, the situation is much more serious. The best way to avoid being arrested for driving while intoxicated (DWI) is to simply not drink and drive. Get a designated driver or call Uber! It seems easy enough.
Yet, it still happens.
According to the Federal Bureau of Investigation, in 2011 there were over 1.2 million arrests nationwide for driving under the influence. Until this past November, if you found yourself in this position in Texas, you would have encountered the implied consent law. However, as this report explains, that will no longer be the case.
Understanding Implied Consent
Under the Texas Transportation Code, if a person is arrested while operating a motor vehicle in a public space, that person is deemed to have consented to having a breath or blood test to determine the alcohol concentration in the person’s body. The test may be administered if an arrest has been made and the officer has reasonable grounds to believe the person was operating a vehicle while intoxicated or, if the person is a minor, that the minor was operating the vehicle while under the influence of alcohol.
Importantly, Section 724.013 of the Transportation Code states that a person may refuse to submit to the taking of a breath or blood sample. Critically, before a request for taking a breath or blood sample, the officer must explain orally and in writing that refusal will have specific consequences. These include automatic driver’s license suspension for at least 180 days and the possibility that the refusal will be used in a subsequent prosecution. The entire list of consequences for refusing can be found at Section 724.015.
However, pursuant to Section 724.012(b), there are certain situations where a breath or blood sample is mandatory. One such situation is when the person being arrested has been convicted twice previously for a DWI.
Implied Consent Unconstitutional
The challenge to the implied consent law resulted after a man suspected of driving while intoxicated refused to give a blood sample. The arresting officer discovered that the man had two prior convictions for DWI and transported him to the hospital where his blood was involuntarily drawn. The result of the test showed the man was legally intoxicated and he was eventually charged with a felony DWI.
In November, the Texas Court of Criminal Appeals held that the “nonconsensual search of a DWI suspect’s blood” violates the Fourth Amendment when not obtained pursuant to a warrant. The Fourth Amendment protects people against unreasonable searches and seizures. It is possible that the case will be appealed to the United States Supreme Court.
This all changed because of a United States Supreme Court case called Missouri v. McNeely where the U.S. Supreme Court finally chimed in and said “You can’t do that, we have a Constitution and that is no bueno!” Or something similar! For now, the implied consent law is invalid. However, it is still possible for arresting officers to obtain samples without the person’s consent so long as they obtain a warrant first.
To be completely candid, the District Attorney’s Office in Harris County understood this concept from the very beginning and blood was routinely kicked because it didn’t pass constitutional muster. I tip my hat to the way they handled the issue.
Galveston County, lead by Jack Roady as the elected DA with almost zero trial experience, on the other hand, fought long and hard for mandatory blood draws.
It was like they couldn’t read.
We had several positive rulings appealed by his office when they had absolutely no chance of prevailing! It took Galveston County over 18 months longer than Harris County to understand the concept. The warrant requirement is another issue that law enforcement doesn’t quite understand, but we’ll leave that for another blog entry.
Get Our Attorneys on Your Side
As demonstrated by this ruling, even when facing a charge for driving while intoxicated (DWI), you have Constitutional Rights. It is important to be aware of those rights and to ensure that they’re not violated. If you’ve been accused of DWI or any other form of criminal offense involving the operation of a motor vehicle while intoxicated, contact Houston DWI lawyer Tad A. Nelson and let us help you protect your rights.