Archive for October, 2016

Do I Have to Take a Field Sobriety or Chemical Test in Texas?


Texas criminal defense attorneyRecently, the Supreme Court ruled on a case called Birchfield v. North Dakota. The case arose because states were imposing criminal penalties for refusing blood tests when suspected of drunk driving. These laws were found to be unconstitutional, as states cannot coerce consent to a blood test by saying a motorist will be charged with a crime for not submitting to a blood draw.

The case actually addressed both blood and breath tests, and the Supreme Court drew a distinction between the two. The Court ruled that police had to get a warrant in order to compel a defendant to submit to a  blood test, even after a lawful drunk driving arrest. However, no warrant was needed to compel a defendant to submit to a breath test.

After this case, many people wonder exactly what their rights are during a drunk driving traffic stop.

While the Supreme Court provided some protection for defendants by saying they couldn’t be threatened with criminal charges for not giving blood, the Court did not overturn implied consent laws. Implied consent laws say a driver gives implied consent to a blood alcohol concentration (BAC) test by driving on the streets of the state. In other words, if you take advantage of the privilege to drive, you implicitly agree- even without saying so- that you’ll submit to a chemical test under appropriate circumstances.

Implied consent laws aren’t unconstitutional because the laws don’t impose criminal penalties for blood test refusal. Instead, if you decline to submit to a test, you will lose your license for a period of time and your refusal may be used against you when you face drunk driving charges.

Texas has an implied consent law, which is found in 2005 Texas Transportation Code Chapter 724.  Under this law: “If a person is arrested for a [drunk driving] offense… the person is deemed to have consented… to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.”

Because of this law, you cannot decline to take some type of chemical test upon your arrest, or you’ll lose your license and prosecutors can submit evidence of your refusal to the jury to try to convince them of your guilt. However, penalties for test refusal are often no less severe than for conviction, while test failure gives prosecutors another piece of evidence to use against you.

In any case, the law does NOT require you to take any type of field sobriety test. This means when police pull you over, if they ask you to do something like walk-and-turn or follow a moving object with your eyes or stand on one leg, you don’t have to agree to do any of these tests.  If you do agree, however, it is possible your performance on the test could be used against you. You may wish to decline the testing to make sure this doesn’t happen.