It never fails鈥攚hen an attorney is at a party where alcohol is being served, someone eventually asks them, 鈥淪o, should I take a breath test if I am pulled over?鈥
I believe the best way to respond to that question is not with a simple yes or no, but to educate that person on the law as it pertains to the situation. This should put them in a position to make an intelligent decision should they end up in that predicament.
Texas has what is called the Implied Consent Law, and it is spelled out in the Transportation Code. It says that if a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle or a watercraft in a public place, while intoxicated, the person is deemed to have consented to submit to the taking of one or more specimens of the person鈥檚 breath or blood for analysis to determine the alcohol concentration or the presence in the person鈥檚 body of a controlled substance, drug, dangerous drug, or other substance.
However, the Code also provides that a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer. Note that it is law enforcement who gets to decide whether the requested test should be breath or blood. While a breath test is typically the simpler way to get a quantitative blood alcohol result, it is limited to alcohol and the machine which conducts the test is incapable of testing for drugs. In a situation where an officer suspects that intoxication could be the result of drugs, or some combination of alcohol and drugs, they are more likely to request a blood test. A blood test is capable of determining alcohol concentrations, as well as drug and medication concentrations.
Once an officer has arrested someone for driving while intoxicated, boating while intoxicated, or driving under the influence (which only applies to minors, and makes it an offense to operate a vehicle or a watercraft, in a public place, with 鈥渁ny detectable amount of alcohol in their system鈥), they are to inform the arrested person, both orally and in writing, of the consequences of either providing a specimen over the legal limit, or refusing to provide a specimen. It is at this point that they may ask for a specimen of blood or breath.
It needs to be noted that upon refusal, an officer may obtain a search warrant for someone鈥檚 blood, and then it cannot be refused.
In Texas, there are multiple ways for the State to prove intoxication in regards to driving or boating while intoxicated, but intoxication is per se established if a specimen of blood or breath yields a blood alcohol concentration of 0.08% or more (0.04% for commercial drivers). Of course, if the specimen of blood or breath comes back at less than this amount, then there is not per se intoxication due to alcohol.
If a person is arrested for driving while intoxicated, and provides a specimen of blood or breath over the legal limit, a 90-day driver鈥檚 license suspension results. If a second such suspension occurs within 10 years, the result is a 1-year suspension. If a person refuses to provide a specimen, a 180-day suspension results. If a second such suspension occurs within 10 years, a 2-year suspension results.
These suspensions go into effect 40 days after the person is served with the notice of suspension. You can request a hearing to contest the suspension, and this must be done within 15 days of the notice of suspension. If such a hearing is requested, the driver鈥檚 license suspension will not occur until the Judge makes a ruling on the legality of the suspension. If the Judge decides against allowing the Department to suspend the license, there will be no suspension.
Should a person鈥檚 license be suspended, they should either not drive (driving with a suspended license is a crime for which you can be arrested), or obtain a restricted operator鈥檚 driver鈥檚 license (also known as an occupational license), which will allow them to drive for the purposes of their occupation, education, and essential household needs.
The best way to avoid dealing with the Implied Consent Law is to not drive if you have been drinking. Designated drivers, cabs, Ubers, etc., are all great ideas if you have been drinking and must travel. If you do end up in a situation where you are asked for a specimen of blood or breath, hopefully after reading this article you will be in a better position to make an intelligent decision. In any event, if arrested for driving or boating while intoxicated, it would be advisable to consult with an attorney who is knowledgeable in this area of law as soon as practical, but certainly within the 15-day deadline for requesting a hearing on the driver鈥檚 license suspension.