Recently a driver in the State of Texas asked, “If I was in an accident and I was unconscious and the police came and tested my blood alcohol concentration (BAC) while I was unconscious is this legal or should I have been allowed to give my consent prior to the BAC test?”
Implied Consent laws in the State of Texas
Many drivers do not understand the implications of the implied consent laws which have been passed in the State of Texas, and it is these laws which go to the heart of the question this driver is asking.
Under Texas implied consent laws (Texas Transportation Code Annotated 724.011), drivers have given their implied consent to submit to a chemical test if they are lawfully arrested by a police officer. The purpose of the chemical test is to determine if a driver was intoxicated and unable to safely operate their motorized vehicle.
Although there are several tests, including the preliminary breathing test and the field sobriety test, which a driver can lawfully refuse to take, drivers who refuse the chemical test following the DUI arrest will receive an automatic 180 day license suspension. Drivers who refuse the test a second time will receive an automatic 2 year license suspension. Drivers who submit to the test and have a BAC of 0.08% or higher will also receive an automatic 90 day license suspension.
This suspension is an administrative penalty assessed by the state. It does not carry any criminal fines or penalties and is separate from any subsequent DUI penalties a driver may suffer after a DUI conviction. In fact, the administrative penalties are assessed even if the driver is ultimately found not guilty of a Texas DWI.
Rights prior to the Chemical Test in Texas
Although Texas drivers have legally consented to the chemical test, this does not mean they do not have certain rights. Prior to administering the test the police officer should offer information about the penalties for a test refusal and information about how the refusal can be used against the driver in court. Drivers will also have 15 days to request a hearing to challenge the administrative license suspension.
What if I refuse to take the chemical test?
So what happens if you do not consent to the test? Under most conditions, Texas DUI law does not allow the police officer to forcibly take the blood, breath, or urine of a driver. Exceptions exist, however, if the following is true:
- Another individual was seriously injured or killed.
- The driver had two or more prior DWI convictions.
- The driver had a prior DWI conviction with a child in the car.
- The driver had a prior DWI conviction where another person was injured or killed.
- The driver is unconscious at the scene of the accident or they are dead.
If you were involved in an accident and the police officer had probable cause to believe you were intoxicated at the time of the accident they may have the legal right to perform a chemical test of your blood even if you were not conscious and could not give your consent for the test.
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