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How does implied consent affect you during a Texas DWI arrest?

The concept of implied consent is a confusing one that many people don't quite grasp. The average person in Texas won't really need to worry about the definition of implied consent or how it affects their rights. However, anyone who finds themselves stopped as part of a sobriety checkpoint or pulled over as part of an enforcement effort could find themselves worrying about chemical testing and their right to refuse.

Texas traffic laws allow law enforcement officers to perform breath tests during traffic stops if they believe someone is under the influence of alcohol. They can also take blood from someone after an arrest in certain situations involving driving while intoxicated (DWI).

Law enforcement officers are able to do so because anyone driving on Texas roads has already given implied consent to chemical testing related to suspicions of impaired driving. Refusing to allow a test can leave a driver in violation of the implied consent law.

Refusing a roadside test won't necessarily prevent DWI charges

The first thing you need to understand about implied consent is that there are penalties associated with refusing a chemical test, even if you can prove you were sober at the time. Those penalties for refusing include the loss of your license for 180 days and an inability to file for a Texas driver's license for 180 days.

More importantly, simply refusing won't stop the state of Texas from gathering evidence or charging you with a DWI. The officer involved in your stop and arrest can testify to the courts about your refusal, which the courts may consider tantamount to an admission that you knew you were unsafe at the wheel.

Refusing doesn't mean that police can't gather physical evidence

Your right to bodily autonomy in the Fourth Amendment protect you from law enforcement officers conducting unreasonable searches of your person, which could include collecting samples of your blood, urine or hair without your consent. However, that right to bodily autonomy ends if the courts issue a warrant for chemical testing.

It is even possible to have to submit to testing without a warrant signed by a judge. Those arrested late on a Friday night would otherwise be able to avoid a mandatory blood draw related to DWI charges because judges are not available at that time.

In certain circumstances, police can secure an immediate warrant for a blood test after a suspected DWI offense. Situations where police can compel you to give blood for testing include crashes that result in injuries or fatalities, a suspected DWI with a minor child in the vehicle, an arrest of someone with two or more previous DWIs on their record or if someone has lost consciousness at the wheel.

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