The laws around blood alcohol content, implied consent and warrantless searches in Texas are complex and continue to evolve.
There have been many lurches and shifts around what constitutes a “search” of an individual and under what circumstances law enforcement can attempt them. Before we even get to that, we have to understand the groundwork of blood alcohol content (BAC) and what it means in the context of implied consent and searches.
Blood alcohol content, also called blood alcohol concentration, blood ethanol concentration and blood alcohol level, is the percentage of alcohol in your bloodstream. BAC testing allows law enforcement and medical professionals to objectively test how much alcohol is present in your body.
Alcohol absorbs into the bloodstream through your small intestine and stomach in as little as 15 minutes. As your BAC increases, your intoxication will also increase. Variables that can affect your BAC include weight, gender, age, food intake and water consumption.
This is what happens at various levels of blood alcohol content:
BAC levels can be tested by breath, urine or blood. Breath testing is the easiest, though lawyers argue that it can be inaccurate. Blood testing is the best, but it requires a trained professional and is time-consuming; urinalysis is not as accurate as the blood testing and breath tests.
Blood testing is especially troublesome. People have an aversion to needles, and some individuals have bleeding disorders or infections. Law enforcement officers need to transport suspects to phlebotomists at hospitals or clinics, and then wait for the results, which can take weeks or months.
Breathalyzers are made to be carried and results are instantaneous. While the argument can be made that blood is more accurate than breath (and indeed, that argument has been made in court multiple times), police need an instrument that can be used on the go.
What about those people who have more than 0.08 g/dL in their bloodstreams? All states have laws that deem any driver “per se intoxicated” with a BAC of 0.08 g/dL or higher. This means that the cops don’t need to find any additional evidence.
Even if that person has developed a tolerance and is functioning well at 0.08%, he will still be convicted of driving while intoxicated.
A driver could also be convicted if his BAC was less than 0.08 g/dL if a cop testified that he failed a roadside sobriety test. If his conduct was irregular or he was vomiting, the cop could presume that this driver was intoxicated and submit his testimony to that effect.
In terms of zero tolerance, these laws penalize anyone under the age of 21 who uses a vehicle with any alcohol in his or her system. These are meant to protect younger drivers and to keep them off the roads. This means that if his or her BAC is above 0.00%, that kid could be arrested.
When someone has been pulled over (which is called a “Terry stop” – in legal terms this is a short detention of a suspect so that police can investigate), the police will ask that individual to step out of the vehicle and breathe into a device colloquially called a Breathalyzer. This measures breath alcohol content. From this device, officers will be able to quickly determine whether that driver is intoxicated.
That driver has a couple of options, though in Texas those options are pretty harsh. He can breathe into the Breathalyzer, after which he’ll likely be arrested and arraigned for driving while intoxicated. He can refuse to submit to the chemical test, but under the laws of implied consent, this means that it will trigger some automatic penalties under Texas law.
When you apply for a Texas driver’s license, there is a part of the code that states if you are pulled over by law enforcement, you agree in advance to submit to chemical tests like Breathalyzers or roadside sobriety exams. It’s “implied” that you will submit to these because you have the express privilege of driving on Texas’ roads.
If you decide not to comply, there are harsh penalties. In Texas, evidence of your refusal can be used against you in court, and there is an immediate suspension of your license for 180 days. You’ll receive a driver’s permit in its place that is valid for 41 days and have to request a hearing to fight the suspension within 15 days. If you don’t, that suspension lasts the full 180 days if it’s your first offense. If it’s your second or third offense, the suspension lasts two years.
They still can’t force you to submit to a chemical test, however, unless you caused someone to die in a car accident or there was serious injury. Additionally, if it is your second or third offense, the officer can force you to take the test. If you only have one prior DWI conviction but have a child in the car with you, the officer can also force you to submit to chemical testing.
Texas has an interesting concept called “No Refusal Weekends.” These are short periods, typically holiday weekends, in which a judge is on call for electronic warrants. In State v. Villarreal, the court ruled that the warrantless search was unconstitutional (i.e., the cops could not draw blood without a warrant, even if the driver was obviously drunk, because the driver did not consent to the search).
As such, the state would put notices out for “No Refusal Weekends” in which they would stop drivers and ask them to submit to tests. If they refused and the officers thought they were driving while intoxicated, they would ring the judge on call and ask for an expedited electronic warrant. This would then allow them to constitutionally “search” the driver and force them to submit to the chemical test. This was in an effort to curb drunk driving over holiday weekends and after sporting events.
Let’s flip the equation now and put you on the other side. You were just in the wrong place at the wrong time, and a drunk driver hit your car. What happens next?
The Texas district attorney for your specific county will pursue DWI (driving while intoxicated) charges against the driver in criminal court. You will be called upon to testify as a witness, and your medical records and other damages will be used as exhibits. That is where the driver will receive punishment, which will range anywhere from a fine to community service to jail time. You, however, will pursue damages in civil court.
There are special damages, which are out-of-pocket expenses like medical bills, child care, transportation costs and lost income. Then there are general damages, which include non-tangible items like pain and suffering, loss of consortium and mental anguish. Texas is a comparative negligence state, which means that if the jury finds you more than 50% at fault, you won’t receive any damages.
There is also the possibility of pursuing a dram shop case if the driver was served alcohol at a tavern or bar prior to hitting your car. If the bartender could see the driver was visibly intoxicated and served him anyway, the tavern could be held liable under the Texas Dram Shop Act.
The driver’s insurance company will likely try to settle with you for far less than what your case is worth, but make sure to put your head down and soldier on. A case like this can potentially be worth a lot, and a good attorney can help you significantly.
If you find yourself in a driving-while-intoxicated situation and you’re not sure of your rights, you might want to speak with an attorney. Texas can be a tough nut to crack when it comes to DWI cases. Take a moment to speak with Enjuris’ Texas law firm partners!