Texas Implied Consent Law: What Happens When You Refuse a Breath or Blood Test?
Written by the Editorial Team of DWI Education of Southeast Texas and approved by Rodney Pegram, CEO & Owner of DWI Education of Southeast Texas.
When a person is arrested in Texas on suspicion of driving while intoxicated (DWI), one of the most important legal issues that can arise is whether the person will submit to a breath or blood test. Texas law refers to this concept as implied consent.
There is an important distinction, however: Texas’s implied-consent law is primarily found in Chapter 724 of the Texas Transportation Code, not the Texas Penal Code. The Penal Code defines and establishes the criminal offense of DWI, while the Transportation Code governs the rules concerning breath and blood specimens, refusal, and driver’s-license consequences.
What Is Implied Consent in Texas?
Under Texas law, a person who operates a motor vehicle is generally considered to have consented to providing a specimen of breath or blood under the circumstances established by Chapter 724 of the Transportation Code.
The purpose of the specimen is to determine the person’s alcohol concentration or the presence of a controlled substance, drug, or other substance.
This does not mean that police can automatically force every person suspected of DWI to give blood or breath. The law establishes specific procedures governing when a specimen may be requested and when a refusal may be overridden.
How Does the Penal Code Relate to Implied Consent?
The Texas Penal Code establishes the underlying DWI offense.
Under Texas Penal Code §49.04, a person commits DWI if the person is intoxicated while operating a motor vehicle in a public place. Texas Penal Code §49.01 provides the statutory definitions used in Chapter 49, including the definition of “intoxicated.” In general terms, intoxication can be established through loss of the normal use of mental or physical faculties or through an alcohol concentration of 0.08 or more, as defined by the statute.
The breath or blood test is therefore evidence that may be used to prove a DWI case. Refusing the test does not, by itself, eliminate the underlying DWI investigation.
What Happens When a Person Refuses a Breath or Blood Test?
A refusal can have consequences separate from the criminal DWI charge.
Under Texas Transportation Code §724.035, if a person refuses an officer’s request to provide a specimen, the Texas Department of Public Safety is required to suspend the person’s driver’s license for 180 days. If the person’s driving record shows one or more qualifying alcohol- or drug-related enforcement contacts during the preceding 10 years, the suspension period can be two years.
The suspension is an administrative driver’s-license consequence. It is separate from whatever happens with the criminal DWI prosecution.
In other words, a person can potentially face both:
- A criminal DWI prosecution; and
- An administrative driver’s-license suspension based on the refusal.
Can the Refusal Be Used Against the Person in Court?
Yes.
Texas Transportation Code §724.061 specifically provides that a person’s refusal to submit to a requested breath or blood specimen may be introduced into evidence at the person’s trial. The statute applies whether the refusal is an express refusal or results from an intentional failure to provide the specimen.
This is an important point because some people mistakenly believe that refusing a test means the prosecution has no evidence of intoxication.
A refusal does not necessarily prevent the State from presenting other evidence, such as an officer’s observations, field-sobriety evidence, statements, driving behavior, video evidence, or other admissible evidence.
Can Police Force a Blood Test After a Refusal?
Sometimes.
Texas Transportation Code §724.013 generally states that a specimen may not be taken when a person refuses, but the statute contains important exceptions.
One of the most important exceptions involves the circumstances described in §724.012. For example, the statute contains mandatory blood-specimen provisions involving certain serious collisions and other specified circumstances.
The law also addresses situations in which an officer obtains a warrant or has probable cause to believe that exigent circumstances exist.
Consequently, saying “I refuse the test” does not necessarily mean that no blood specimen can legally be obtained. Whether police can obtain a specimen despite a refusal depends heavily on the facts and the statutory requirements applicable to that specific case.
Refusal Is Not the Same as a DWI Conviction
It is also important to understand that refusing a breath or blood test does not automatically mean that a person is guilty of DWI.
The State still has to prove the elements of the charged offense. Under Penal Code §49.04, the basic DWI offense requires proof that the person was intoxicated while operating a motor vehicle in a public place.
A refusal can nevertheless become part of the prosecution’s evidence.
Therefore, a person should not assume that a refusal makes the DWI case disappear or that a refusal automatically establishes guilt.
The Difference Between a Breath Test and a Blood Test
The legal consequences of refusing a breath test and refusing a blood test can overlap because Chapter 724 addresses the taking of specimens generally.
However, the circumstances surrounding a blood draw can be significantly different from those surrounding a roadside or station breath test.
A blood draw may occur pursuant to a warrant or under one of the statutory circumstances permitting a specimen to be obtained despite a person’s refusal. Texas law specifically recognizes circumstances involving collisions, serious bodily injury, certain prior convictions, and other situations in which a specimen may be required.
What About the Driver’s Right to a Hearing?
A driver’s-license suspension resulting from a refusal is not necessarily the end of the matter.
Texas Transportation Code §724.041 provides a procedure for requesting an administrative hearing to contest the suspension or denial. The statute generally requires the hearing request to be received by the Department of Public Safety within 15 days after the person receives, or is considered to have received, the notice.
This deadline is important. A person who receives a refusal-related suspension notice should not ignore it because the administrative proceeding is separate from the criminal DWI case.
A Refusal Can Create Two Separate Legal Issues
A useful way to understand Texas implied consent law is to separate the consequences into two categories.
First, the driver’s license:
A refusal can result in an administrative suspension, generally 180 days for a first qualifying refusal and potentially two years when the statutory prior-enforcement-contact provision applies.
Second, the criminal case:
The refusal itself may be introduced as evidence at trial. The prosecution may also rely on other evidence to establish intoxication.
These are separate legal processes, and the outcome of one does not necessarily determine the outcome of the other.
Final Thoughts
Texas’s implied-consent law can be confusing because it involves both the Texas Penal Code and the Texas Transportation Code, but they serve different purposes.
The Penal Code establishes the DWI offense. The Transportation Code’s Chapter 724 governs implied consent, specimen requests, refusals, certain circumstances in which specimens can be obtained despite a refusal, and administrative driver’s-license consequences.
Most importantly, refusing a breath or blood test does not simply make a DWI investigation go away. A refusal can result in a driver’s-license suspension and can itself be presented as evidence at a DWI trial. At the same time, whether police can obtain a specimen despite the refusal depends on the specific statutory circumstances, such as whether a warrant exists or whether one of the statutory exceptions applies.
Because DWI and implied-consent cases can involve strict deadlines and fact-specific constitutional and statutory issues, anyone facing an actual DWI arrest or refusal suspension should promptly consult a Texas attorney who can review the particular facts of the arrest.
This article is for general educational purposes and is not legal advice. Texas statutes can change, and the law applicable to an individual case depends on the facts and the date of the alleged offense.
Primary Source- Chapter 724 of the Texas Transportation Code and Texas Penal Code 49.04